§ 2307-A — Commissions of attorney-executor 1

New York § 2307-A

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

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§ 2307-a. Commissions of attorney-executor\n 1. Disclosure. When an attorney prepares a will to be proved in the\ncourts of this state and such attorney, a then affiliated attorney, or\nan employee of such attorney or a then affiliated attorney is therein an\nexecutor-designee, the testator shall be informed prior to the execution\nof the will that:\n (a) subject to limited statutory exceptions, any person, including the\ntestator's spouse, child, friend or associate, or an attorney, is\neligible to serve as an executor;\n (b) absent an agreement to the contrary, any person, including an\nattorney, who serves as an executor is entitled to receive an executor's\nstatutory commissions;\n (c) absent execution of a disclosure acknowledgment, the attorney who\nprepared the will, a then affiliated attorney, or an employee of such\nattorney or a then affiliated attorney, who serves as an executor shall\nbe entitled to one-half the commissions he or she would otherwise be\nentitled to receive; and\n (d) if such attorney or an affiliated attorney renders legal services\nin connection with the executor's official duties, such attorney or a\nthen affiliated attorney is entitled to receive just and reasonable\ncompensation for such legal services, in addition to the executor's\nstatutory commissions.\n 2. Testator's written acknowledgment of disclosure. An acknowledgment\nby the testator of the disclosure required by subdivision one of this\nsection must be set forth in a writing executed by the testator in the\npresence of at least one witness other than the executor-designee. Such\nwriting, which must be separate from the will, but which may be annexed\nto the will, and which may be executed prior to, concurrently with or\nsubsequently to a will in which an attorney, a then affiliated attorney,\nor an employee of such attorney or a then affiliated attorney is an\nexecutor-designee and must be filed in the proceeding for the issuance\nof letters testamentary to the executor-designee.\n 3. Models of acknowledgment of disclosure. The following are models of\nthe testator's written acknowledgment of disclosure:\n (a) When set forth in a writing executed prior to or concurrently with\na will:\n Prior to signing my will, I was informed that:\n (i) subject to limited statutory exceptions, any person, including my\nspouse, my child, a friend or associate, or an attorney, is eligible to\nserve as my executor;\n (ii) absent an agreement to the contrary, any person, including an\nattorney, who serves as an executor for me is entitled to receive\nstatutory commissions for executorial services rendered to my estate;\n (iii) absent execution of this disclosure acknowledgment, the attorney\nwho prepared the will, a then affiliated attorney, or an employee of\nsuch attorney or a then affiliated attorney, who serves as an executor\nshall be entitled to one-half the commissions he or she would otherwise\nbe entitled to receive; and\n (iv) if such attorney serves as my executor, and he or she or another\nattorney affiliated with such attorney renders legal services in\nconnection with the executor's official duties, he or she is entitled to\nreceive just and reasonable compensation for those legal services, in\naddition to the commissions to which an executor is entitled.\n ______________________ _________________________\n (Witness) (Testator)\n Dated:________________ Dated:___________________\n (b) When set forth in a writing executed subsequently to the will:\n I, , have designated {my attorney},\n , {an attorney affiliated with my attorney}\n{an employee of my attorney or an affiliated attorney,} {a} {an}\n{executor} {alternate executor} {co-executor} (delete what is\ninapplicable) in my will dated ___________________.\n Prior to signing my will, I was informed that:\n (i) subject to limited statutory exceptions, any person, including my\nspouse, my child, a friend or associate, or an attorney, is eligible to\nserve as my executor;\n (ii) absent an agreement to the contrary, any person, including an\nattorney, who serves as an executor for me is entitled to receive\nstatutory commissions for executorial services rendered to my estate;\n (iii) absent execution of this disclosure acknowledgment, the attorney\nwho prepared my will, a then affiliated attorney, or an employee of such\nattorney or a then affiliated attorney, who serves as an executor shall\nbe entitled to one-half the commissions he or she would otherwise be\nentitled to receive; and\n (iv) if such attorney serves as my executor, and he or she or another\nattorney affiliated with such attorney renders legal services in\nconnection with the executor's official duties, he or she is entitled to\nreceive just and reasonable compensation for those legal services, in\naddition to the commissions to which an executor is entitled.\n ______________________ _________________________\n (Witness) (Testator)\n Dated:________________ Dated:___________________\n 4. Compliance. (a) The testator's written acknowledgment of disclosure\nthat conforms or substantially conforms to either model in subdivision 3\nof this section shall be deemed compliance with subdivision 2 of this\nsection.\n (b) An attorney's compliance with subdivision 2 of this section\ncreates neither the presumption nor the inference:\n (i) that the testator's designation of such attorney, a then\naffiliated attorney, or an employee of such attorney or a then\naffiliated attorney, as executor, is proper;\n (ii) that such attorney has complied with the disciplinary rules of\nthe code of professional responsibility.\n 5. Effect of absence of acknowledgment. Absent compliance with the\nrequirements of subdivision 2 of this section, the commissions of an\nattorney, or an employee of the attorney who prepared the will or a then\naffiliated attorney, who serves as an executor shall be one-half the\nstatutory commissions to which such person as executor would otherwise\nbe entitled pursuant to sections 2307 and 2313 of this article.\n 6. Rents. Notwithstanding the provisions of subdivision 5 of this\nsection, the additional commissions to which an attorney, or an employee\nof the attorney who prepared the will or a then affiliated attorney, who\nserves as an executor may be entitled pursuant to subdivision 6 of\nsection 2307 shall not be diminished.\n 7. Time of determination of compliance. A determination of compliance\nwith the requirements of subdivisions 1 and 2 of this section shall be\nmade in a proceeding for the issuance of letters testamentary to an\nexecutor-designee to whom subdivision 1 of this section applies.\n 8. Definitions. For purposes of this section, the words or phrases\nhereafter shall be construed as follows:\n (a) Affiliated attorney. An attorney who, by reason of partnership,\nshare holding, association or other relationship, express or implied,\ncould participate directly or indirectly, with the attorney who prepared\nthe will in fees for legal services rendered.\n (b) Executor-designee. A person named in a will or codicil, separately\nor jointly with one or more persons, as a primary, successor, ancillary,\nor preliminary executor.\n (c) Employee. A person who was employed by the attorney who prepared\nthe will or an affiliated attorney when the will was executed.\n 9. Application. (a) This section shall apply to wills executed on or\nafter January 1, 1996 and, irrespective of the date of any will, to\nestates of decedents dying after December 31, 1996.\n (b) With respect to wills executed prior to January 1, 1996:\n (i) subdivisions 1 and 2 of this section shall not apply if the\ntestator has acknowledged the disclosure required by subdivision 1 of\nthis section in a writing that conforms or substantially conforms to the\nmodel in paragraph (b) of subdivision 3 of this section; and\n (ii) the court in its discretion may waive application of subdivisions\n1 and 2 of this section for good cause shown; good cause shall include,\nbut not be limited to:\n (A) a good-faith effort after the enactment of this statute either to\nmake to the testator the disclosure required by subdivision 1 of this\nsection or obtain from the testator a written acknowledgment\nsubstantially conforming to that set forth in paragraph (b) of\nsubdivision 3 of this section, or\n (B) otherwise establishing to the satisfaction of the court reasonable\ngrounds to excuse the absence of a written acknowledgement substantially\nconforming to that set forth in paragraph (b) of subdivision 3 of this\nsection; and\n (iii) section 4519 of the civil practice law and rules shall not\napply.\n