§ 2307 — Commissions of fiduciaries other than trustees 1

New York § 2307

• Jurisdiction: New York
• Law SCP: Surrogate's Court Procedure
• Art. 23: Costs, Allowances and Commissions

Text

§ 2307. Commissions of fiduciaries other than trustees\n 1. Except as otherwise provided in paragraph (f) of this subdivision\non the settlement of the account of any fiduciary other than a trustee,\na donee of a power during minority or a donee of a power in trust, the\ncourt must allow to him or her the reasonable and necessary expenses\nactually paid by him or her and if he or she be an attorney of this\nstate and shall have rendered legal services in connection with his or\nher official duties, such compensation for his or her legal services as\nappear to the court to be just and reasonable and in addition thereto it\nmust allow to the fiduciary for his or her services as fiduciary, and if\nthere be more than one, apportion among them according to the services\nrendered by them respectively the following commissions:\n (a) For receiving and paying out all sums of money not exceeding\n$100,000 at the rate of 5 percent.\n (b) For receiving and paying out any additional sums not exceeding\n$200,000 at the rate of 4 percent.\n (c) For receiving and paying out any additional sums not exceeding\n$700,000 at the rate of 3 percent.\n (d) For receiving and paying out any additional sums not exceeding\n$4,000,000 at the rate of 2 1/2 percent.\n (e) For receiving and paying out all sums above $5,000,000 at the rate\nof 2 percent.\n (f) If the will makes provisions for specific rates or amounts of\ncommissions for a corporate executor, or, if a corporate executor has\nagreed to accept specific rates or amounts of commissions, or, if the\nwill provides that a corporate executor shall receive commissions as\nprovided or stipulated in the corporate executor's published schedule of\nfees in effect at such time or times such commissions become payable,\nincluding a stipulated minimum commission and asset base for calculating\nsuch commissions, a corporate executor shall be entitled to be\ncompensated in accordance with such provisions, agreement or schedule,\nas the case may be, even though such provisions, agreement or schedule\nare not executed in accordance with the provisions required for wills\nand are not attested as required for the recording of deeds in this\nstate.\n Such commission shall be computed separately for receiving and for\npaying out sums of money, at one-half the statutory rates for receiving\nand at one-half the statutory rates for paying out sums of money.\n 2. The value of any property, to be determined in such manner as\ndirected by the court and the increment thereof, received, distributed\nor delivered, shall be considered as money in computing commissions. But\nthis shall not apply in case of: (a) a specific legacy or devise; or (b)\nthe recovery of awards from the September eleventh victim compensation\nfund of two thousand one established pursuant to title IV of the federal\nair transportation safety and system stabilization act, public law\n107-42, as amended, which awards shall be valued at zero for purposes of\nthis section. Whenever any portion of the dividends, interest or rent\npayable to a fiduciary other than a trustee is required by any law of\nthe United States or other governmental unit to be withheld by the\nperson paying it for income tax purposes, the amount so withheld shall\nbe deemed to have been received and paid out.\n 3. In addition to the compensation hereinbefore provided the court may\nallow to the guardian of the person a sum of money to be fixed by it and\npaid by the guardian of the property out of the funds in his hands as\ncompensation for services of the guardian of the person up to the time\nof the allowance.\n 4. If a guardian is required to receive income and pay it over and\nfiles an annual account as required by 1719 of all his receipts and\ndisbursements, he shall be allowed and may retain the same commission on\nthe amount of income so accounted for as he would be allowed upon\nprincipal on a judicial settlement. If the guardian fails to file an\nannual account as required by 1719 the guardian, notwithstanding his\nfailure to retain in full each year the commissions on income herein\nprescribed, may be allowed upon the judicial settlement of his account\nany commissions due and theretofore uncollected by him provided that on\nsuch settlement there is then on hand income sufficient for that purpose\nderived from the estate during the respective years for which further\ncommissions are claimed. If the income on hand for any given year is\ninsufficient to pay the uncollected commissions on the income of that\nyear the deficiency shall not be supplied from income on hand in respect\nof any other year.\n 5. Subject to 2313 regarding multiple commissions of executors or\ntrustees under wills of persons dying, or lifetime trusts established,\nafter August 31, 1993, if the gross value of the principal of the estate\naccounted for amounts to $300,000 or more each fiduciary is entitled to\nthe full compensation on principal and income allowed herein to a sole\nfiduciary unless there be more than 3, in which case the compensation to\nwhich 3 would be entitled must be apportioned among them according to\nthe services rendered by them respectively unless the fiduciaries shall\nhave agreed in writing among themselves to a different apportionment\nwhich, however, shall not provide for more than one full commission for\nany one of them. If the gross value of the principal of the estate\naccounted for is:\n (a) less than $100,000 and there is more than 1 fiduciary the full\ncompensation for receiving and paying out principal and income allowed\nherein to a sole fiduciary must be apportioned among them according to\nthe services rendered by them respectively, or\n (b) $100,000 or more but less than $300,000 each fiduciary is entitled\nto the full compensation for receiving and paying out principal and\nincome allowed herein to a sole fiduciary unless there are more than 2\nfiduciaries in which case the full compensation for receiving and paying\nout principal and income allowed herein to 2 fiduciaries must be\napportioned among them according to the services rendered by them\nrespectively,\nunless the fiduciaries shall have agreed in writing between or among\nthemselves to a different apportionment which, however, shall not\nprovide for more than one full commission for any one of them. Where the\nwill provides a specific compensation to a fiduciary other than a\ntrustee he is not entitled to any allowance for his services unless by\nan instrument filed with the court within 4 months from the date of his\nletters he renounces the specific compensation. Where successive or\ndifferent letters are issued to the same person on the estate of the\nsame decedent, including a case where letters of administration are\nissued to a person who has previously been appointed a temporary\nadministrator, he is entitled to a total compensation equal to the\ncompensation allowed for the full administration of the estate by a\nfiduciary acting in a single capacity only. Such total compensation\nshall be payable in such proportions and upon such accounting as shall\nbe fixed by the court settling the account of the person holding\nsuccessive or different letters but no paying out commissions shall be\nallowed except upon such sums as shall actually have been paid out at\nthe time of the respective decrees for debts, expenses of administration\nor to beneficiaries.\n 6. Where a fiduciary is for any reason entitled or required to collect\nthe rents of and manage real property he shall be allowed and may retain\nfor such services 5 per cent of the gross rents collected therefrom in\naddition to the commissions herein provided, but there shall be only one\nsuch additional commission regardless of the number of fiduciaries. In\nthe event there are 2 or more fiduciaries the additional commission\nherein provided for must be apportioned among them according to the\nservices rendered by them respectively unless they shall have agreed in\nwriting among themselves to a different apportionment.\n 7. A fiduciary other than a trustee who has been acting prior to July\n1, 1956 shall be entitled to have commissions on principal and income\ntheretofore received by him computed, allowed and paid under the methods\nand at the rates set forth herein, except as follows:\n (a) If prior to July 1, 1956 a fiduciary other than a trustee has been\nallowed or has retained commissions for receiving and paying out any\nitem of principal or income he shall be entitled to no further\ncommissions on the item.\n (b) If prior to July 1, 1956 a fiduciary other than a trustee has been\nallowed or has retained any commissions on any item of principal or\nincome received but not paid out by him he shall be entitled to no\nfurther commissions for receiving the item.\n