Bill Text: NY A06046 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to the commissions of donees of a power in trust, including donees of a power during minority.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2018-03-20 - REFERRED TO JUDICIARY [A06046 Detail]
Download: New_York-2017-A06046-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6046 2017-2018 Regular Sessions IN ASSEMBLY February 22, 2017 ___________ Introduced by M. of A. BUCHWALD, WEINSTEIN, WEPRIN -- (at request of the Office of Court Administration) -- read once and referred to the Committee on Judiciary AN ACT to amend the surrogate's court procedure act, in relation to the commissions of donees of a power in trust, including donees of a power during minority The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2306 of the surrogate's court procedure act is 2 amended to read as follows: 3 § 2306. Annual statements to be furnished to beneficiaries 4 Any trustee, donee of a power during minority or donee of a power in 5 trust who is not required to furnish annual statements under either 2308 6 or 2309 because he or she has not retained annual commissions shall 7 nevertheless be required to furnish the annual statements referred to in 8 those sections to any beneficiary receiving income or any person inter- 9 ested in the principal of the trust who shall request such statements, 10 or in the case of a power during minority or of a power in trust, to the 11 beneficiary of the power in trust, or to a person to whom a payment not 12 exceeding $10,000 could be made under subdivision 1 of section 2220 of 13 this chapter. 14 § 2. The opening paragraph of subdivision 1 of section 2307 of the 15 surrogate's court procedure act, as amended by chapter 474 of the laws 16 of 1994, is amended to read as follows: 17 Except as otherwise provided in paragraph (f) of this subdivision on 18 the settlement of the account of any fiduciary other than a trustee, a 19 donee of a power during minority or a donee of a power in trust, the 20 court must allow to him or her the reasonable and necessary expenses 21 actually paid by him or her and if he or she be an attorney of this 22 state and shall have rendered legal services in connection with his or 23 her official duties, such compensation for his or her legal services as EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09817-01-7A. 6046 2 1 appear to the court to be just and reasonable and in addition thereto it 2 must allow to the fiduciary for his or her services as fiduciary, and if 3 there be more than one, apportion among them according to the services 4 rendered by them respectively the following commissions: 5 § 3. Section 2308 of the surrogate's court procedure act, the section 6 heading and subdivision 1, as amended by chapter 503 of the laws of 7 1980, paragraph (c) of subdivision 1 as added by chapter 376 of the laws 8 of 2001, subdivision 2 as amended by chapter 654 of the laws of 1993, 9 subdivision 3 as amended by chapter 243 of the laws of 2001, subdivi- 10 sions 4, 6, 7 and paragraph (d) of subdivision 9, as amended and subdi- 11 vision 12 as added by chapter 237 of the laws of 1978, paragraph (a) of 12 subdivision 5 as amended and subdivision 13 as added by chapter 936 of 13 the laws of 1984, paragraphs (a) and (b) of subdivision 6, as amended by 14 chapter 245 of the laws of 1991, and subdivision 8 as amended by chapter 15 685 of the laws of 1967, is amended to read as follows: 16 § 2308. Commissions of trustees, donees of power during minority and 17 donees of powers in trust under wills of persons dying, or 18 under lifetime trusts created, on or before August 31, 1956 19 1. On the settlement of the account of any trustee or donee of power 20 in trust under the will of a person dying on or before August 31, 1956, 21 or under a lifetime trust established on or before August 31, 1956, the 22 court must allow him or her his or her reasonable and necessary expenses 23 actually paid by him or her and if he or she be an attorney of this 24 state and shall have rendered legal services in connection with his or 25 her official duties, such compensation for his or her legal services as 26 shall appear to the court to be just and reasonable and in addition 27 thereto it must allow to the trustee or to the donee of the power in 28 trust for his or her services as trustee or donee of the power in trust 29 the following commissions from trust principal or property subject to 30 the power in trust: 31 (a) For receiving principal or property subject to the power in trust 32 (1) all sums of money constituting principal or property subject to 33 the power in trust not exceeding $2,000 at the rate of 3 per cent; 34 (2) all additional sums of principal or property subject to the power 35 in trust not exceeding $10,000 at the rate of 1 1/2 per cent; 36 (3) all sums of principal or property subject to the power in trust 37 above $12,000 at the rate of 1 1/4 per cent; and 38 (b) For paying out principal or property subject to the power in trust 39 at the rate of 1 per cent. 40 (c) Notwithstanding the provisions of section 8 of chapter 237 of the 41 laws of 1978, commissions provided by paragraph (a) of this subdivision 42 for receiving principal or property subject to the power in trust shall 43 not be allowed to a trustee or donee of a power in trust who qualifies 44 to act as such on or after June 5, 1978, and shall not be allowed on 45 additions of property received on or after June 5, 1978; such commis- 46 sions on any increments in property that are payable by reason of any 47 sale, exchange or liquidation of such property shall be allowed on the 48 lesser of (1) the amount of such increments on the date of sale, 49 exchange or liquidation of such property and (2) the amount of such 50 increments on June 5, 1978; and such commissions on any increments in 51 property that are payable by reason of any distribution of such property 52 shall be allowed on the lesser of (1) the amount of such increments on 53 the date of distribution of such property and (2) the amount of such 54 increments on the effective date of this paragraph.A. 6046 3 1 2. In addition to the commission allowed by subdivision one a trustee 2 or a donee of a power in trust shall be entitled to annual commissions 3 at the following rates: 4 (a) $10.50 per $1,000 or major fraction thereof on the first $400,000 5 of principal or property to the power in trust; 6 (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of 7 principal or property subject to the power in trust; and 8 (c) $3.00 per $1,000 or major fraction thereof on all additional prin- 9 cipal or property subject to the power in trust. 10 Such annual commissions shall be computed either on the value of the 11 principal of the trust or of the property subject to the power in trust 12 at the end of the period for which the commissions are payable or, at 13 the option of the trustee or of the donee of the power in trust, on the 14 value of the principal of the trust or of the property subject to the 15 power in trust at the beginning of such period, provided that the option 16 elected by the trustee or of the donee of the power in trust for the 17 first period for which such commissions are payable shall be used during 18 the continuance of the trust or of the power in trust and shall be bind- 19 ing on any successor or substitute trustee or trustees or successor or 20 substitute donees of the power in trust. In the case of a trust or 21 power in trust which prior to January 1, 1994 computed annual commis- 22 sions on the basis of a 12 month period (other than a calendar year), 23 the trustee's or donee's prior election of such 12 month period shall be 24 binding unless, prior to January 1, 1995, the trustee or donee makes a 25 new election to compute annual commissions on the basis of a calendar 26 year either on the value of the principal of the trust or of the proper- 27 ty subject to the power in trust at the end of, or at the option of the 28 trustee or donee of the power in trust at the beginning of, the calendar 29 year for which the commissions were payable, which new election shall be 30 used during the remaining continuance of the trust or of the power in 31 trust and shall be binding on any successor or substitute trustee or 32 trustees or donee or donees of the power in trust. The computation shall 33 be made on the basis of a 12 month period but the amount so computed 34 payable to a trustee or donee of a power in trust shall be proportion- 35 ately reduced or increased for any payments made in partial distribution 36 of the trust or of the property subject to the power in trust or receipt 37 of any additional property into the trust or by the donee of a power in 38 trust within such period and shall be proportionately reduced in any 39 period for which such commissions are payable to the trustee or donee of 40 the power in trust if the period is less than 12 months. For the purpose 41 of computing the annual commissions the value of any principal asset 42 when received by the trust or by the donee of a power in trust shall be 43 the presumptive value of the asset at the beginning and end of the peri- 44 od for which such commissions are payable. In computing the value of the 45 principal of the trust or of the property subject to the power in trust 46 the trustee or the donee of the power in trust may use the presumptive 47 value in respect of any principal asset or may use the actual value of 48 the asset. On the settlement of the account of the trustee or of the 49 donee of a power in trust any person interested may dispute the amount 50 of any commission claimed or retained. The burden of proving that the 51 actual value of any principal asset differs from its presumptive value 52 is upon the trustee, the donee of the power in trust or other person 53 claiming the difference. 54 3. Unless the will otherwise explicitly provides, the annual commis- 55 sions allowed by subdivision two of this section shall be payable one- 56 third from the income of the trust or of the property subject to theA. 6046 4 1 power in trust and two-thirds from the principal of the trust or from 2 the property subject to the power in trust. However, in the case of a 3 trust whose definition of income is governed by 11-2.4 of the estates, 4 powers and trusts law, such annual commissions shall be payable from the 5 corpus of any such trust after allowance for the unitrust amount and 6 shall not be payable out of such unitrust amount. 7 4. The commissions allowed by subdivision 2 may be retained by a trus- 8 tee or donee of a power in trust provided he or she furnishes annually 9 as of a date not more than 30 days prior to the end of the trust year 10 selected by the trustee or the calendar year, to each beneficiary 11 currently receiving income, and to any other beneficiary interested in 12 the income and to any person interested in the principal of the trust 13 who shall make a demand therefor or to the beneficiary of the power in 14 trust who shall make a demand therefor, a statement showing the princi- 15 pal assets or the property subject to the power in trust on hand on that 16 date, and at least annually or more frequently if the trustee or donee 17 of a power in trust so elects, a statement showing all his or her 18 receipts of income and principal or property subject to the power in 19 trust during the period with respect to which the statement is rendered 20 including the amount of any commissions retained and the basis upon 21 which the commissions were computed. A trustee or donee of a power in 22 trust shall not be deemed to have waived any commissions by reason of 23 his or her failure to retain them at the time when he or she becomes 24 entitled thereto; provided however that commissions from income for any 25 given trust or calendar year shall be allowed and retained only from 26 income derived from the trust or from the property subject to the power 27 in trust during that year and shall not be supplied from income on hand 28 in respect of any other trust or calendar year. If a beneficiary receiv- 29 ing income does not desire to be furnished with any such statement his 30 or her advice to the trustee or to the donee of the power in trust to 31 that effect in writing shall thereafter excuse the trustee or donee of 32 the power in trust from furnishing such statement to the beneficiary 33 unless and until the beneficiary requests such annual statements from 34 the trustee or donee of the power in trust. 35 5. (a) During the continuance of a trust created solely for public, 36 religious, charitable, scientific, literary, educational or fraternal 37 uses and during the period of continuance of such a trust after the 38 termination of a life use or uses the trustee shall be entitled to and 39 may retain commissions from income in an amount annually equal to 6 per 40 cent of income collected in each year. 41 (b) In the case of a trust created solely for public, religious, char- 42 itable, scientific, literary, educational or fraternal uses the trustee 43 shall not be entitled to any commission from principal. 44 (c) In the case of such a trust which continues after the termination 45 of a life use or uses the trustee for the period of the measuring life 46 or lives shall be entitled to commissions from income and principal at 47 the rates and according to the terms otherwise provided in this section, 48 except that he or she shall not be entitled to any commissions for 49 paying out any amount of principal. 50 6. (a) If the gross value of the principal of the trust or of the 51 property subject to the power in trust accounted for amounts to $400,000 52 or more and there is more than 1 trustee or donee of the power in trust, 53 each trustee or donee of the power in trust is entitled to the full 54 compensation for receiving and paying out principal or property subject 55 to the power in trust allowed herein to a sole trustee or donees of the 56 power in trust unless there are more than 3, in which case the compen-A. 6046 5 1 sation to which 3 would be entitled must be apportioned among the trus- 2 tees or donees of the power in trust according to the services rendered 3 by them respectively, unless the trustees or donees of the power in 4 trust shall have agreed in writing among themselves to a different 5 apportionment which, however, shall not provide for more than one full 6 commission for any one of them. If the gross value of the principal of 7 the trust or of the property subject to the power in trust accounted for 8 is: 9 (i) less than $100,000 and there is more than 1 trustee or donee of 10 the power in trust the full compensation for receiving and paying out 11 principal or property subject to the power in trust allowed herein to a 12 sole trustee or donee of the power in trust must be apportioned among 13 them according to the services rendered by them respectively, or 14 (ii) $100,000 or more but less than $400,000, each trustee or donee of 15 the power in trust is entitled to the full compensation for receiving 16 and paying out principal or property subject to the power in trust 17 allowed pursuant to this subdivision to a sole trustee or donee of the 18 power in trust unless there are more than 2 trustees or donees of the 19 power in trust in which case the full compensation for paying out prin- 20 cipal or property subject to the power in trust allowed pursuant to this 21 subdivision to 2 trustees or donees of the power in trust must be appor- 22 tioned among them according to the services rendered by them respective- 23 ly, 24 unless the trustees or donees of the power in trust shall have agreed in 25 writing between or among themselves to a different apportionment which, 26 however, shall not provide for more than one full commission for any one 27 of them. 28 (b) If the value of the principal of the trust or of the property 29 subject to the power in trust for the purpose of computing the annual 30 commissions allowed by subdivision 2 amounts to $400,000 or more and 31 there is more than one trustee or donee of the power in trust, each 32 trustee or donee of the power in trust is entitled to the full annual 33 commission allowed herein to a sole trustee or donee of the power in 34 trust unless there are more than 3, in which case the annual commissions 35 to which 3 would be entitled must be apportioned among the trustees or 36 donees of the power in trust according to the services rendered by them 37 respectively, unless the trustees or donees of the power in trust shall 38 have agreed in writing among themselves to a different apportionment 39 which, however, shall not provide for more than one full annual commis- 40 sion for any one of them. If the value of the principal or of the prop- 41 erty subject to the power in trust for the purpose of computing the 42 annual commission allowed by subdivision 2 amounts to: 43 (i) less than $100,000 and there is more than 1 trustee or donee of 44 the power in trust, the annual commissions from income and the annual 45 commission allowed herein to a sole trustee or donee of the power in 46 trust must be apportioned among the trustees or donee of the power in 47 trust according to the services rendered by them respectively, or 48 (ii) $100,000 or more but less than $400,000, each trustee or donee of 49 the power in trust is entitled to the full annual commission allowed 50 pursuant to this subdivision to a sole trustee or donee of the power in 51 trust unless there are more than 2 trustees or donees of the power in 52 trust in which case the full annual commissions allowed pursuant to this 53 subdivision to 2 trustees or donees of the power in trust must be appor- 54 tioned among them according to the services rendered by them respective- 55 ly,A. 6046 6 1 unless the trustees or donees of the power in trust shall have agreed in 2 writing between or among themselves to a different apportionment which, 3 however, shall not provide for more than one full annual commission for 4 any one of them. However, if from a trust or from property subject to a 5 power in trust having a value of $400,000 or more, or if from a trust or 6 from property subject to a power in trust having a value of $100,000 or 7 more but less than $400,000, as the case may be, at the beginning of a 8 trust year or of the calendar year in the case of a power in trust, any 9 payments in partial distribution of the trust or of the property subject 10 to the power in trust shall be made during the trust or calendar year so 11 as to reduce the trust or of the property subject to the power in trust 12 to a value of less than $400,000 or $100,000, as the case may be, at the 13 end of the trust or calendar year, then the annual commission allowed 14 herein shall, on a proportionate basis, be those allowed to a trustee of 15 a trust or to the donees of a power in trust over property having a 16 value of $400,000 or more, of a trust or to the donees of a power in 17 trust over property having a value of $100,000 or more but less than 18 $400,000, as the case may be, for the period from the beginning of the 19 trust or calendar year to the date of the distribution and shall, on a 20 proportionate basis, be those allowed to trustees of a trust or to the 21 donees of a power in trust over property having a value of either 22 $100,000 or more but less than $400,000 or less than $100,000, as the 23 case may be, for the remainder of the trust or calendar year and the 24 part of such commissions payable from principal and computed from the 25 beginning of the trust or calendar year to the date of distribution 26 shall be charged ratably to the property remaining in the trust and to 27 the property distributed from the trust on the basis of their respective 28 values. Further, if during a trust year or a calendar year in the case 29 of power in trust additional property shall be received into a trust 30 which had a value of less than $100,000 or by a donee of a power in 31 trust the property subject to which had a value of less than $100,000, 32 or into a trust which had a value of $100,000 or more but less than 33 $400,000 or by a donee of a power in trust the property subject to which 34 had a value of $100,000 or more but less than $400,000, as the case may 35 be, at the beginning of the trust or calendar year so that because of 36 the additional property the trust or the property subject to the power 37 in trust shall have a value of $100,000 or more or of $400,000 or more, 38 as the case may be, at the end of the trust or calendar year, then the 39 annual commission allowed herein to the trustee or to the donee of the 40 power in trust shall, on a proportionate basis, be those allowed to 41 trustees of a trust or to donees of a power in trust over property 42 having a value of less than $100,000, or to trustees of a trust or to 43 the donees of the power in trust having a value of $100,000 or more but 44 less than $400,000, as the case may be, for the period from the begin- 45 ning of the trust or calendar year to the date of the receipt of the 46 additional property and shall, on a proportionate basis, be those 47 allowed to trustees of a trust or to donees of a power in trust over 48 property having a value of $100,000 or more but less than $400,000, or 49 to trustees of a trust or to donees of a power in trust over property 50 having $400,000 or more, as the case may be, for the remainder of the 51 trust or calendar year. 52 (c) Notwithstanding any provisions of paragraphs (a) and (b) of this 53 subdivision to the contrary, if during the continuance of a trust 54 created solely for public, religious, charitable, scientific, literary, 55 educational or fraternal uses or during the continuance of such a trust 56 after the termination of a life use or uses, the annual income of theA. 6046 7 1 trust amounts to $4,000 or more and there is more than 1 trustee, each 2 trustee is entitled to the full commission allowed under subdivision 5 3 to a sole trustee unless there are more than 2, in which case the 4 commissions to which 2 trustees would be entitled must be apportioned 5 among the trustees according to the services rendered by them respec- 6 tively, unless they shall have agreed in writing among themselves to a 7 different apportionment which, however, shall not provide for more than 8 one full commission to any one of them; provided however, if during the 9 continuance of a trust created solely for public, religious, charitable, 10 scientific, literary, educational or fraternal uses created prior to 11 April 1, 1948, the annual income of the trust amounts to $4,000 or more 12 and there is more than 1 trustee each trustee is entitled to the full 13 commission allowed under subdivision 5 to a sole trustee unless there 14 are more than 3, in which case the commission to which 3 trustees would 15 be entitled must be apportioned among the trustees according to the 16 services rendered by them respectively, unless they shall have agreed in 17 writing among themselves to a different apportionment which, however, 18 shall not provide for more than one full commission to any one of them. 19 If the annual income of the trust amounts to less than $4,000 and there 20 is more than 1 trustee the commissions to which a sole trustee would be 21 entitled under subdivision 5 must be apportioned among the trustees 22 according to the services rendered by them respectively unless they 23 shall have agreed in writing among themselves to a different apportion- 24 ment. 25 7. Where a trustee or donee of a power in trust is for any reason 26 entitled or required to collect the rents of and manage real property 27 the net amount of rents collected and not the gross amount shall be used 28 in making computation of commissions allowed by subdivision 5 hereof and 29 in addition to the commissions herein provided he or she shall be 30 allowed and may retain for such services 6 per cent of the gross rents 31 collected, but there shall be only 1 such additional commission regard- 32 less of the number of trustees or donees of the power in trust. If there 33 are 2 or more trustees or donees of the power in trust the additional 34 commission herein provided must be apportioned among them according to 35 the services rendered by them respectively unless they shall have agreed 36 in writing among themselves to a different apportionment. 37 8. A trustee who prior to September 1, 1966 shall have received the 38 maximum amount of commissions on principal permitted by subdivision 8 of 39 section 285-a of the surrogate's court act as that subdivision existed 40 prior to that date, shall not be entitled to annual principal commis- 41 sions for the period from the date when he or she shall receive such 42 maximum and September 1, 1966, but shall be entitled to receive commis- 43 sions from and after September 1, 1966 at the rates and in the manner 44 provided in this section. A trustee who has become entitled to annual 45 principal commissions pursuant to section 285-a of the surrogate's court 46 act as it existed prior to September 1, 1966, but has not received them, 47 may receive an amount of commissions not in excess of the amount he or 48 she would have been entitled to if he or she had taken such commissions, 49 and be entitled to receive in addition commissions from and after 50 September 1, 1966 at the rates and in the manner provided in that 51 section. 52 9. A trustee who has been acting prior to July 1, 1956 shall be enti- 53 tled to have commissions on principal and income theretofore received by 54 him or her computed, allowed and paid under the methods and at the rates 55 set forth herein, except as follows:A. 6046 8 1 (a) If prior to July 1, 1956 a trustee has been allowed or has 2 retained commissions for receiving and paying out or for distributing 3 any item of principal he or she shall be entitled to no further commis- 4 sions on the item. 5 (b) If prior to July 1, 1956 a trustee has been allowed or retained 6 commissions on any item of principal received but not paid out or 7 distributed by him or her he or she shall be entitled to no further 8 commissions for receiving the item. 9 (c) Any trustee who became entitled to an annual principal commission 10 under subdivision 1 (b) of section 285-a of the surrogate's court act as 11 it existed prior to April 1, 1948 and who has not retained such commis- 12 sion may retain an amount equal to one-half of such annual principal 13 commission. A trustee who because of the provisions of subdivision 2 of 14 section 285-a of the surrogate's court act as it existed prior to April 15 1, 1948 either was not entitled to retain an annual principal commission 16 under subdivision 1 (b) thereof or was required to credit such annual 17 principal commission against his or her commission for receiving princi- 18 pal, may retain an amount equal to 1/2 of such annual principal commis- 19 sion. If a trustee has been allowed by decree or has retained any such 20 annual principal commission one-half the amount thereof shall be 21 deducted from the amount of commissions to which the trustee would 22 otherwise be entitled under the provisions of subdivision 1. 23 (d) The annual principal commissions allowed by subdivision 3 of this 24 section as it existed on September 1, 1967 shall not be allowed or 25 retained in respect of any trust year ending prior to April 1, 1948, but 26 for any trust year ending on or after April 1, 1948 and prior to July 1, 27 1956, the annual principal commission which may be allowed or retained 28 shall be computed at the rates in effect on the date such trust year 29 ended. 30 (e) If prior to July 1, 1956 a trustee has been allowed or has 31 retained commissions on any item of income received and paid out by him 32 or her prior to September 1, 1943 or on any item of income collected by 33 him or her subsequent to September 1, 1943 he or she shall be entitled 34 to no further commission on the item. 35 10. The value of any property to be determined in such manner as 36 directed by the court and the increment thereof received, distributed or 37 delivered shall be considered as money in making computation of commis- 38 sions. Whenever any portion of the dividends, interests or rents payable 39 to a trustee or donee of a power in trust is required by any law of the 40 United States or other governmental unit to be withheld by the person 41 paying it for income tax purposes, the amount so withheld shall be 42 deemed to have been collected. 43 11. Where the will provides a specific compensation to a trustee or 44 donee of a power in trust he or she is not entitled to any other allow- 45 ances for his or her services. 46 12. If a trustee of a trust or donee of a power in trust is authorized 47 or required by the terms of the will to accumulate income for any 48 purpose permitted by law, any income so accumulated which is not added 49 to principal of the trust or to the principal of the property subject to 50 the power in trust shall be deemed a separate trust or separate fund 51 subject to the power in trust for purposes of this subdivision and the 52 trustee or donee of the power in trust shall be entitled to commissions 53 in respect thereof at the rates and according to the terms and 54 provisions of subdivisions 1 and 2 of this section as though, for 55 purposes of computing commissions of the trustee, income so accumulated 56 was principal.A. 6046 9 1 13. For the purposes of this section, the term "trustee" shall mean 2 any trustee who is not a corporate trustee and the term "donee of a 3 power in trust" shall mean any such donee including a donee of a power 4 during minority who is not a corporate fiduciary provided, however, that 5 as used in subdivision 6 of this section, the term trustee shall include 6 a corporate trustee, and further provided that the term "property 7 subject to the power in trust" shall include property subject to a power 8 during minority. 9 § 4. Section 2309 of the surrogate's court procedure act, the section 10 heading and subdivision 1 as amended by chapter 503 of the laws of 1980, 11 subdivision 2 as amended by chapter 654 of the laws of 1993, subdivision 12 3 as amended by chapter 243 of the laws of 2001, paragraph (a) of subdi- 13 vision 5 as amended and subdivision 11 as added by chapter 936 of the 14 laws of 1984, subdivisions 6 and 7 as amended by chapter 303 of the law 15 of 1976, paragraphs (a) and (b) of subdivision 6 as amended by chapter 16 245 of the laws of 1991, and the opening paragraphs of paragraphs (a) 17 and (b) of subdivision 6 as amended by chapter 514 of the laws of 1993, 18 is amended to read as follows: 19 § 2309. Commissions of trustees, of donees of powers during minority and 20 of donees of powers in trust under wills of persons dying, or 21 lifetime trusts established, after August 31, 1956 22 1. On the settlement of the account of any trustee or donee of a power 23 in trust under the will of a person dying after August 31, 1956, or 24 under a lifetime [inter] trust established after August 31, 1956, the 25 court must allow to him or her his or her reasonable and necessary 26 expenses actually paid by him or her and if he or she be an attorney of 27 this state and shall have rendered legal services in connection with his 28 or her official duties, such compensation for his or her legal services 29 as shall appear to the court to be just and reasonable and in addition 30 thereto it must allow to the trustee or donee of a power in trust for 31 his or her services as trustee or donee of a power in trust a commission 32 from principal or from the property subject to the power in trust, for 33 paying out all sums of money constituting principal or property subject 34 to the power in trust at the rate of 1 per cent. 35 2. In addition to the commission allowed by subdivision 1 hereof a 36 trustee or donee of a power in trust shall be entitled to annual commis- 37 sions at the following rates: 38 (a) $10.50 per $1,000 or major fraction thereof on the first $400,000 39 of principal or property subject to the power in trust. 40 (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of 41 principal or property subject to the power in trust. 42 (c) $3.00 per $1,000 or major fraction thereof on all additional prin- 43 cipal or property subject to the power in trust. 44 Such annual commissions shall be computed either on the value of the 45 principal of the trust or of the property subject to the power in trust 46 at the end of the period for which the commissions are payable or, at 47 the option of the trustee or donee of the power in trust, on the value 48 of the principal of the trust or of the property subject to the power in 49 trust at the beginning of such period, provided that the option elected 50 by the trustee or donee of the power in trust for the first period for 51 which such commissions are payable shall be used during the continuance 52 of the trust or of the power in trust and shall be binding on any 53 successor or substitute trustee or trustees, donee or donees. In the 54 case of a trust which prior to January 1, 1994 computed annual commis- 55 sions on the basis of a 12 month period (other than a calendar year), 56 the trustee's prior election of such 12 month period shall be bindingA. 6046 10 1 unless, prior to January 1, 1995, the trustee makes a new election to 2 compute annual commissions on the basis of a calendar year either on the 3 value of the principal of the trust at the end of, or at the option of 4 the trustee at the beginning of, the calendar year for which the commis- 5 sions were payable, which new election shall be used during the remain- 6 ing continuance of the trust and shall be binding on any successor or 7 substitute trustee or trustees. The computation shall be made on the 8 basis of a 12-month period but the amount so computed payable to a trus- 9 tee shall be proportionately reduced or increased for any payments made 10 in partial distribution of the trust or the receipt of any additional 11 property into the trust within such period and shall be proportionately 12 reduced in any period for which such commissions are payable to the 13 trustee if the period is less than 12 months. For the purpose of comput- 14 ing the annual commissions the value of any principal asset when 15 received by the trust or donee of a power in trust shall be the presump- 16 tive value of the asset at the beginning and end of the period for which 17 such commissions are payable. In computing the value of the principal of 18 the trust or of the property subject to the power in trust the trustee 19 or donee of the power in trust may use the presumptive value in respect 20 of any principal asset or may use the actual value of the asset. On the 21 settlement of the account of the trustee or donee of a power in trust 22 any person interested may dispute the amount of any commission claimed 23 or retained. The burden of proving that the actual value of any princi- 24 pal asset or asset subject to the power in trust differs from its 25 presumptive value is upon the trustee or donee of a power in trust or 26 other person claiming the difference. 27 3. Unless the will or lifetime trust instrument otherwise explicitly 28 provides the annual commissions allowed by subdivision 2 shall be paya- 29 ble one-third from the income of the trust or property subject to the 30 power in trust and two-thirds from the principal of the trust or proper- 31 ty subject to the power in trust. However, in the case of a trust whose 32 definition of income is governed by section 11-2.4 of the estates, 33 powers and trusts law or a charitable remainder annuity trust or a char- 34 itable remainder unitrust, as defined in section six hundred sixty-four 35 of the Internal Revenue Code of nineteen hundred eighty-six, as amended, 36 such annual commissions shall be payable from the corpus of any such 37 trust after allowance for the annuity or unitrust amounts and shall not 38 be payable out of such annuity or unitrust amounts. 39 4. The commissions allowed by subdivision 2 may be retained by a trus- 40 tee provided he or she furnishes annually as of a date no more than 30 41 days prior to the end of the trust year selected by the trustee, to each 42 beneficiary currently receiving income, and to any other beneficiary 43 interested in the income and to any person interested in the principal 44 of the trust who shall make a demand therefor and by a donee of a power 45 in trust if he or she furnishes annually as of a date no more than 30 46 days prior to the end of the calendar year to the beneficiary of the 47 power in trust, a statement showing the principal assets on hand on that 48 date, and at least annually or more frequently if the trustee or donee 49 of the power in trust so elects, a statement showing all his or her 50 receipts of income and principal or property subject to the power in 51 trust during the period with respect to which the statement is rendered 52 including the amount of any commissions retained and the basis upon 53 which the commissions were computed. A trustee or donee of a power in 54 trust shall not be deemed to have waived any commissions by reason of 55 his or her failure to retain them at the time when he or she becomes 56 entitled thereto; provided however that in the case of a trust commis-A. 6046 11 1 sions payable from income for any given trust year shall be allowed and 2 retained only from income derived from the trust during that year and 3 shall not be supplied from income on hand in respect of any other trust 4 year and in the case of property subject to a power in trust commissions 5 payable from income for any given calendar year shall be allowed and 6 retained only from income derived from the property during that year and 7 shall not be supplied from income on hand in respect of any other calen- 8 dar year. If a beneficiary receiving income does not desire to be 9 furnished with any such statements his or her advice to the trustee or 10 to the donee of the power in trust to that effect in writing shall ther- 11 eafter excuse the trustee or donee of the power in trust from furnishing 12 such statement to the beneficiary unless and until the beneficiary 13 requests such annual statements from the trustee or donee of the power 14 in trust. 15 5. (a) During the continuance of a trust created solely for public, 16 religious, charitable, scientific, literary, educational or fraternal 17 uses and during the period of continuance of such a trust after the 18 termination of a life use or uses the trustee shall be entitled to and 19 may retain commissions from income in an amount annually equal to 6 per 20 cent of income collected in each year. 21 (b) In the case of a trust created solely for public, religious, char- 22 itable, scientific, literary, educational or fraternal uses the trustee 23 shall not be entitled to any commission from principal. 24 (c) In the case of such a trust which continues after the termination 25 of the measuring life use or uses the trustee for the period of the 26 measuring life use or uses shall be entitled to commissions from income 27 and principal at the rates and according to the terms specified in 28 subdivision 2 and except in respect of principal paid out to a charity 29 or for charitable uses shall be entitled to a commission for distribut- 30 ing all sums of principal at the rate specified in subdivision 1. 31 6. (a) Subject to section 2313 regarding multiple commissions of exec- 32 utors [or], trustees, or donees of a power in trust created under wills 33 of persons dying, or lifetime trusts established, after August 31, 1993, 34 if the gross value of the principal of the trust or of the property 35 subject to the power in trust accounted for amounts to $400,000 or more 36 and there is more than 1 trustee or donee each trustee or donee is enti- 37 tled to the full compensation for paying out principal allowed herein to 38 a sole trustee or donee unless there are more than 3, in which case the 39 compensation to which 3 would be entitled must be apportioned among the 40 trustees or donees of the power in trust according to the services 41 rendered by them respectively unless [the trustees] they shall have 42 agreed in writing among themselves to a different apportionment which, 43 however, shall not provide for more than one full commission for any one 44 of them. If the gross value of the principal of the trust or of the 45 property subject to the power in trust accounted for is: 46 (i) less than $100,000 and there is more than 1 trustee or donee of 47 the power in trust, the full compensation for paying out principal 48 allowed herein to a sole trustee or donee of the power in trust must be 49 apportioned among them according to the services rendered by them 50 respectively, or 51 (ii) $100,000 or more but less than $400,000, each trustee or donee of 52 the power in trust is entitled to the full compensation for paying out 53 principal allowed herein to a sole trustee or donee of the power in 54 trust unless there are more than 2 trustees or donees of the power in 55 trust in which case the full compensation for paying out principal 56 allowed herein to 2 trustees or donees of a power of trust must beA. 6046 12 1 apportioned among them according to the services rendered by them 2 respectively, unless the trustees or donees of the power in trust shall 3 have agreed in writing between or among themselves to a different appor- 4 tionment which, however, shall not provide for more than one full 5 commission for any one of them. 6 (b) Subject to section 2313 regarding multiple commissions of execu- 7 tors [or], trustees, or donees of a power in trust created under wills 8 of persons dying, or lifetime trusts established, after August 31, 1993, 9 if the value of the principal of the trust or of the property subject to 10 the power in trust for the purpose of computing the annual commissions 11 allowed by subdivision 2 amounts to $400,000 or more and there is more 12 than one trustee or donee of a power in trust each trustee or donee of a 13 power in trust is entitled to the full annual commission allowed herein 14 to a sole trustee or donee of a power in trust unless there are more 15 than 3, in which case the annual commissions to which 3 would be enti- 16 tled must be apportioned among the trustees or donees of the power in 17 trust according to the services rendered by them respectively unless the 18 trustees or donees of the power in trust shall have agreed in writing 19 among themselves to a different apportionment which, however, shall not 20 provide for more than one full annual commission for any one of them. If 21 the value of the principal of the trust or of the property subject to 22 the power in trust for the purpose of computing the annual commission 23 allowed by subdivision 2 amounts to: 24 (i) less than $100,000 and there is more than 1 trustee or donee of 25 the power in trust, the annual commission allowed herein to a sole trus- 26 tee or donee of a power in trust must be apportioned among the trustees 27 or donees of the power in trust according to the services rendered by 28 them respectively, or 29 (ii) $100,000 or more but less than $400,000, each trustee or donee of 30 the power in trust is entitled to the full annual commission allowed 31 herein to a sole trustee or donee of a power in trust unless there are 32 more than 2 trustees or donees of the power in trust in which case the 33 full annual commissions allowed herein to 2 trustees or donees of a 34 power in trust must be apportioned among them according to the services 35 rendered by them respectively, unless the trustees or donees of the 36 power in trust shall have agreed in writing between or among themselves 37 to a different apportionment which, however, shall not provide for more 38 than one full annual commission for any one of them. However, if from a 39 trust or from property subject to a power in trust having a value of 40 $400,000 or more, or if from a trust or from property subject to a power 41 in trust having a value of $100,000, or more but less than $400,000, as 42 the case may be, at the beginning of a trust year or of the calendar 43 year any payments in partial distribution of the trust or of the proper- 44 ty subject to the power in trust shall be made during the trust or 45 calendar year so as to reduce the trust or the property subject to the 46 power in trust to a value of less than $400,000 or $100,000, as the case 47 may be, at the end of the trust or calendar year, then the annual 48 commissions allowed herein shall, on a proportionate basis, be those 49 allowed to trustees of a trust or to the donees of a power in trust over 50 property having a value of $400,000 or more, or of a trust or to the 51 donees of a power in trust over property having a value of $100,000 or 52 more but less than $400,000, as the case may be, for the period from the 53 beginning of the trust or calendar year to the date of the distribution 54 and shall, on a proportionate basis, be those allowed to trustees of a 55 trust or to the donees of a power in trust over property having a value 56 of either $100,000 or more but less than $400,000 or less than $100,000,A. 6046 13 1 as the case may be, for the remainder of the trust or calendar year and 2 the part of such commissions payable from principal and computed from 3 the beginning of the trust or calendar year to the date of distribution 4 shall be charged ratably to the property remaining in the trust or still 5 subject to the power in trust after such distribution and to the proper- 6 ty distributed from the trust or to the beneficiary of the power in 7 trust on the basis of their respective values. Further, if during a 8 trust or calendar year additional property shall be received into a 9 trust which had a value of less than $100,000 or by a donee of a power 10 in trust the property subject to which had a value of less than 11 $100,000, or into a trust which had a value of $100,000 or more but less 12 than $400,000 or by a donee of a power in trust the property subject to 13 which had a value of $100,000 or more but less than $400,000, as the 14 case may be, at the beginning of the trust year or calendar year, so 15 that because of the additional property the trust or the property 16 subject to the power in trust has a value of $100,000 or more but less 17 than $400,000, or of $400,000 or more, as the case may be, at the end of 18 the trust or calendar year, then the annual commissions allowed herein 19 to the trustee or to the donee of the power in trust shall, on a propor- 20 tionate basis, be those allowed to trustees of a trust or to donees of a 21 power in trust over property having a value of less than $100,000, or to 22 trustees of a trust or to donees of a power in trust over property 23 having a value of $100,000 or more but less than $400,000, as the case 24 may be, for the period from the beginning of the trust or calendar year 25 to the date of the receipt of the additional property and shall, on a 26 proportionate basis, be those allowed to trustees of a trust or to 27 donees of a power in trust over property having a value of $100,000 or 28 more but less than $400,000, or to trustees of a trust or to donees of a 29 power in trust over property having $400,000 or more, as the case may 30 be, for the remainder of the trust or calendar year. 31 (c) Notwithstanding any provision of paragraphs (a) and (b) of this 32 subdivision to the contrary, if during the continuance of a trust not 33 measured at any time directly or indirectly by a life or lives or during 34 the continuance of a trust after the termination of the measuring life 35 or lives, the annual income of the trust amounts to $4,000 or more and 36 there is more than 1 trustee, each trustee is entitled to the full 37 commissions allowed under subdivision 5 to a sole trustee unless there 38 are more than 2, in which case the commissions to which 2 trustees would 39 be entitled must be apportioned among the trustees according to the 40 services rendered by them respectively unless they shall have agreed in 41 writing among themselves to a different apportionment which, however, 42 shall not provide for more than one full commission to any one of them. 43 If the annual income of the trust amounts to less than $4,000 and there 44 is more than 1 trustee the commissions to which a sole trustee would be 45 entitled under subdivision 5 must be apportioned among the trustees 46 according to the services rendered by them respectively unless they 47 shall have agreed in writing among themselves to a different apportion- 48 ment. 49 7. Where a trustee or donee of a power in trust is for any reason 50 entitled or required to collect the rents of and manage real property 51 the net amount of rents collected and not the gross amount shall be used 52 in making computation of commissions allowed by subdivision 5 and in 53 addition to the commissions herein provided he or she shall be allowed 54 and may retain for such services 6 per cent of the gross rents 55 collected, but there shall be only one such additional commission 56 regardless of the number of trustees or donees of the power in trust. IfA. 6046 14 1 there are 2 or more trustees or donees of the power in trust the addi- 2 tional commission herein provided for must be apportioned among them 3 according to the services rendered by them respectively unless they 4 shall have agreed in writing among themselves to a different apportion- 5 ment. 6 8. If a trustee or donee of a power in trust is either authorized or 7 required by the terms of the will to accumulate income for any purpose 8 permitted by law he or she shall be entitled to commissions from the 9 income so accumulated, including income derived from the investment of 10 such accumulated income, at the rate of 2 [per cent] percent of the 11 first $2,500 of such income distributed during the administration of the 12 trust and 1 [per cent] percent of all such income distributed in excess 13 of $2,500 and he or she may retain such commissions at the time or times 14 such income is distributed. 15 9. The value of any property to be determined in such manner as 16 directed by the court and the increment thereof received, distributed or 17 delivered, shall be considered as money in making computation of commis- 18 sions. Whenever any portion of the dividends, interests or rents payable 19 to a trustee or to a donee of a power in trust is required by any law of 20 the United States or other governmental unit to be withheld by the 21 person paying it for income tax purposes, the amount so withheld shall 22 be deemed to have been collected. 23 10. Where the will provides a specific compensation for a trustee or a 24 donee of a power in trust he or she is not entitled to any other allow- 25 ances for his or her services. 26 11. For the purposes of this section, the term "trustee" shall mean 27 any trustee who is not a corporate trustee and the term "donee of a 28 power in trust" shall mean any such donee including a donee of a power 29 during minority who is not a corporate fiduciary provided, however, that 30 as used in subdivision 6 of this section, the term trustee shall include 31 a corporate trustee and further provided that the term "property subject 32 to the power in trust" shall include property subject to a power during 33 minority. 34 § 5. Section 2312 of the surrogate's court procedure act as added by 35 chapter 936 of the laws of 1984, subdivision 2, 3, 7, 9 and paragraphs 36 (d) and (e) of subdivision 10 as amended by chapter 511 of the laws of 37 1987, paragraph (b) of subdivision 4 as amended by chapter 245 of the 38 laws of 1991, and subdivision 5 as amended by chapter 243 of the laws of 39 2001, is amended to read as follows: 40 § 2312. Commissions of corporate trustees, including when acting as 41 donees of powers during minority or donees of power in trust 42 1. If the will or lifetime trust instrument makes provisions for 43 specific rates or amounts of commissions (other than a general reference 44 to commissions allowed by law or words of like import) for a corporate 45 trustee, or, if a corporate trustee has agreed to accept specific rates 46 or amounts of commissions, a corporate trustee, whether as trustee or as 47 donee of a power in trust, including for purposes of this section as 48 donee of a power during minority, created under the provisions of the 49 will or lifetime trust instrument, shall be entitled to be compensated 50 in accordance with such provisions or agreement, as the case may be. 51 2. For trusts having a principal value of more than four hundred thou- 52 sand dollars and as donee of a power in trust where the property subject 53 to the power, including for purposes of this section the property 54 subject to a power during minority, has a principal value of more than 55 four hundred thousand dollars and subject to the provisions of subdivi- 56 sion 4 of this section, if the will or lifetime trust instrument doesA. 6046 15 1 not make provisions for specific rates or amounts of commissions, or, 2 contains only a general reference to commissions allowed by law or words 3 of like import, a corporate trustee shall be entitled to such commis- 4 sions as may be reasonable, and the court, upon application of a person 5 interested in the trust or in the fund held by the corporate trustee as 6 donee of a power in trust, may review the reasonableness of the commis- 7 sion of such corporate trustee. 8 3. Subject to the provisions of paragraph (a) of subdivision 4 of this 9 section and regardless of the principal value of the trust: (a) during 10 the continuance of a trust created solely for public, religious, chari- 11 table, scientific, literary, educational or fraternal uses and during 12 the period of continuance of such a trust after the termination of a 13 life use or uses a corporate trustee shall be entitled to and may retain 14 commissions from income in accordance with the provisions of subdivision 15 1 or 2 hereof, as the case may be. 16 (b) In the case of a trust created solely for public, religious, char- 17 itable, scientific, literary, educational or fraternal uses a corporate 18 trustee shall not be entitled to any commission from principal. 19 (c) In the case of such a trust which continues after the termination 20 of the measuring life use or uses a corporate trustee for the period of 21 the measuring life use or uses shall be entitled to commissions from 22 income and principal according to the provisions of subdivision 1 or 2 23 hereof, as the case may be, and except in respect of principal paid out 24 to a charity or for charitable uses shall be entitled to a commission 25 for distributing all sums of principal in accordance with the provisions 26 of subdivision 1 or 2 hereof, as the case may be. 27 4. Notwithstanding anything contained in this chapter, the estates, 28 powers and trusts law or any other provision of law to the contrary, 29 (a) Except as otherwise provided by paragraph (b) of this subdivision 30 and subdivision three of this section, a corporate trustee of any trust 31 created under will or lifetime trust instrument, or as donee of a power 32 in trust created under will or lifetime instrument, whether in existence 33 on or after the effective date of this section, shall be entitled to 34 receive at least the compensation provided for an individual trustee 35 under subdivisions 1, 2, 5 (but only as trustee), 6, 7 and 12 of section 36 2308 and subdivisions 1, 2, 5 (but only as trustee), 6, 7 and 8 of 37 section 2309, as the case may be, in effect after the effective date of 38 this section, at the time and in the manner provided by such sections, 39 unless the will or lifetime trust instrument or an agreement between the 40 trustee and the testator or grantor or by the trustee shall provide 41 otherwise. 42 (b) A corporate trustee shall, in addition to the compensation permit- 43 ted by the provisions of paragraph (a) of this subdivision, be entitled 44 to annual commissions at the rate of not more than $12.35 per thousand 45 or major fraction thereof, in lieu of the annual commissions provided 46 under paragraph (a) of this subdivision, on trusts having a principal 47 value of not more than four hundred thousand dollars and shall be enti- 48 tled to annual commissions at the same rate as donee of a power in trust 49 where the property subject to the power has a principal value of not 50 more than four hundred thousand dollars, and such annual commissions 51 shall be deemed reasonable compensation, unless the will or lifetime 52 trust instrument or an agreement between the corporate trustee and the 53 testator or grantor or by the corporate trustee shall provide otherwise. 54 A corporate trustee shall be entitled to receive such commissions from 55 time to time during the trust or calendar year and shall otherwise beA. 6046 16 1 governed by the provisions of sections 2308 and 2309, as the case may 2 be, in effect from time to time. 3 5. Unless the will or lifetime trust instrument expressly provides 4 otherwise, the commissions allowable by subdivision 1, 2 or 4 hereof, as 5 the case may be, shall be payable one-third from the income of the trust 6 or from the income of the property subject to the power in trust and 7 two-thirds from the principal of the trust or from the property subject 8 to the power in trust. However, in the case of a trust whose definition 9 of income is governed by section 11-2.4 of the estates, powers and 10 trusts law or a charitable remainder annuity trust or a charitable 11 remainder unitrust, as defined in section six hundred sixty-four of the 12 Internal Revenue Code of nineteen hundred eighty-six, as amended, such 13 commissions shall be payable from the principal of any such trust after 14 allowance for the annuity or unitrust amounts and shall not be payable 15 out of such annuity or unitrust amounts. 16 6. The commissions allowed by subdivision 1, 2 or 4 thereof, as the 17 case may be, may be retained, at any time or from time to time during 18 the year in which such commissions are earned, by a corporate trustee, 19 provided it furnishes annually as of a date no more than 30 days prior 20 to the end of the year selected by the corporate trustee, to each bene- 21 ficiary currently receiving income, and to any other beneficiary inter- 22 ested in the income and to any person interested in the principal of the 23 trust who shall make a demand therefor, and, when acting as donee of a 24 power in trust, to the beneficiary of the power in trust, a statement 25 showing the principal assets or assets subject to the power in trust on 26 hand on that date, and at least annually or more frequently if the trus- 27 tee so elects, a statement showing all his or her receipts of income and 28 principal or of property subject to the power in trust during the period 29 with respect to which the statement is rendered including the amount of 30 any commissions retained and the basis upon which the commissions were 31 computed. A corporate trustee shall not be deemed to have waived any 32 commissions by reason of its failure to retain them at the time when it 33 becomes entitled thereto; provided however that commissions payable from 34 income for any such year shall be allowed and retained only from income 35 derived from the trust during such year and shall not be supplied from 36 income on hand in respect of any other year. If a beneficiary receiving 37 income or a beneficiary of a power in trust of which the corporate trus- 38 tee is donee does not desire to be furnished with any such statements 39 his or her advice to the trustee to that effect in writing shall there- 40 after excuse the corporate trustee from furnishing such statements to 41 the beneficiary unless and until the beneficiary requests such annual 42 statements from the trustee. Upon enactment of, and subject to subdivi- 43 sion 1 of this section, a corporate trustee shall continue to receive 44 commissions in the manner provided for a trustee or when acting as donee 45 of a power in trust in the manner provided for a donee of a power in 46 trust under sections 2308 and 2309, as the case may be, in effect imme- 47 diately before the effective date of this section until the end of the 48 then current trust or calendar year, and thereafter, a corporate trustee 49 may receive commissions in accordance with the provisions of subdivision 50 2 or 4 of this section. A corporate trustee shall not change from the 51 commissions provided for by subdivision 2 or 4 of this section, as the 52 case may be, during a trust's calendar or fiscal year or the calendar 53 year in the case of a power in trust but a corporate trustee may change 54 from the commissions provided for by subdivision 2 to the commissions 55 provided for by subdivision 4 of this section, or vice versa, only atA. 6046 17 1 the beginning of a calendar or fiscal year of a trust or a calendar year 2 in the case of a power in trust, as the case may be. 3 7. On the settlement of the account of any trustee or donee of a power 4 in trust under a will or lifetime trust instrument, in addition to the 5 commissions provided for by this section, the court must allow to the 6 corporate trustee including a corporate trustee acting as donee of a 7 power in trust the corporate trustee's reasonable and necessary expenses 8 actually paid by the trustee. 9 8. The value of any property to be determined in such manner as 10 directed by the court and the increment thereof received, distributed or 11 delivered, shall be considered as money in making computation of commis- 12 sions. Whenever any portion of the dividends, interests, rents or other 13 income payable to a trustee or donee of a power in trust is required by 14 any law of the United States or other governmental unit to be withheld 15 by the person paying it for income tax purposes, the amount so withheld 16 shall be deemed to have been collected. 17 9. A trustee who prior to September 1, 1966 shall have received the 18 maximum amount of commissions on principal permitted by subdivision 8 of 19 section 285-a of the surrogate's court act as that subdivision existed 20 prior to that date, shall not be entitled to annual principal commis- 21 sions for the period from the date when he or she shall have received 22 such maximum to September 1, 1966, but shall be entitled to receive 23 commissions from and after September 1, 1966 at the rates and in the 24 manner provided in section 2308 as in effect immediately before enact- 25 ment of this section. A trustee who is entitled to annual principal 26 commissions pursuant to section 285-a of the surrogate's court act as it 27 existed prior to September 1, 1966, but has not received them, may 28 receive an amount of commissions not in excess of the amount he or she 29 would have been entitled to if he or she had taken such commissions, and 30 be entitled to receive in addition commissions from and after September 31 1, 1966 at the rates and in the manner provided in section 285-a of this 32 act. 33 10. A trustee who has been acting prior to July 1, 1956 shall be enti- 34 tled to have commissions on principal and income theretofore received by 35 him or her computed, allowed and paid under the methods and at the rates 36 set forth herein, except as follows: 37 (a) If prior to July 1, 1956 a trustee has been allowed or has 38 retained commissions for receiving and paying out or for distributing 39 any item of principal he or she shall be entitled to no further commis- 40 sions on the item. 41 (b) If prior to July 1, 1956 a trustee has been allowed or retained 42 commissions on any item of principal received but not paid out or 43 distributed by him or her he or she shall be entitled to no further 44 commissions for receiving the item. 45 (c) Any trustee who became entitled to an annual principal commission 46 under subdivision 1 (b) of section 285-a of the surrogate's court act as 47 it existed prior to April 1, 1948 and who has not retained such commis- 48 sion may retain an amount equal to one-half of such annual principal 49 commission. A trustee who because of the provisions of subdivision 2 of 50 section 285-a of the surrogate's court act as it existed prior to April 51 1, 1948 either was not entitled to retain an annual principal commission 52 under subdivision 1 (b) thereof or was required to credit such annual 53 principal commission against his or her commission for receiving princi- 54 pal, may retain an amount equal to one-half of such annual principal 55 commission. If a trustee has been allowed by decree or has retained any 56 such annual principal commission one-half the amount thereof shall beA. 6046 18 1 deducted from the amount of commissions to which the trustee would 2 otherwise be entitled under the provisions of subdivision 1 of surro- 3 gate's court procedure act section 2308. 4 (d) The annual principal commissions allowed by subdivision 3 of 5 surrogate's court procedure act section 2308 as it existed on September 6 1, 1967 shall not be allowed by decree or retained in respect of any 7 trust year ending prior to April 1, 1948, but for any trust year ending 8 on or after April 1, 1948 and prior to July 1, 1956, the annual princi- 9 pal commission which may be allowed by decree or retained shall be 10 computed at the rates in effect on the date such trust year ended. 11 (e) If prior to July 1, 1956 a trustee has been allowed by decree or 12 has retained commissions on any item of income received and paid out by 13 him or her prior to September 1, 1943 or on any item of income received 14 by him or her subsequent to September 1, 1943 he or she shall be enti- 15 tled to no further commission on the item. 16 (f) For purposes of this section, the term "donee of a power in trust" 17 shall mean any such donee including a donee of a power during minority 18 who is a corporate fiduciary and the term "property subject to the power 19 in trust" shall include property subject to a power during minority. 20 § 6. Section 2313 of the surrogate's court procedure act, as amended 21 by chapter 471 of the laws of 1995, is amended to read as follows: 22 § 2313. Multiple commissions of executors or trustees, donees of powers 23 during minority, or donees of power in trust under wills of 24 persons dying, or lifetime trusts established, after August 25 31, 1993 26 With respect to wills of persons dying, or lifetime trusts estab- 27 lished, after August 31, 1993, if there are more than two executors or 28 trustees, donees of a power during minority, or donees of a power in 29 trust, no more than two commissions shall be allowed unless the decedent 30 or creator has specifically provided otherwise in a signed writing, and 31 the compensation thus allowable must be apportioned among the fiduciar- 32 ies or donees of the power in trust according to the services rendered 33 by them respectively unless they shall have agreed in writing among 34 themselves to a different apportionment which, however, shall not 35 provide for more than one full commission for any one of them. 36 § 7. This act shall take effect on the first of January next succeed- 37 ing the date on which it shall have become a law.
