S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5512
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2019
                                ___________
 
 Introduced  by Sen. HOYLMAN -- (at request of the Office of Court Admin-
   istration) -- read twice and ordered printed, and when printed  to  be
   committed 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:
 
   Section  1.  Section  2306  of  the surrogate's court procedure act is
 amended to read as follows:
 § 2306. Annual statements to be furnished to beneficiaries
   Any trustee, DONEE OF A POWER DURING MINORITY OR DONEE OF A  POWER  IN
 TRUST who is not required to furnish annual statements under either 2308
 or  2309  because  he  OR  SHE has not retained annual commissions shall
 nevertheless be required to furnish the annual statements referred to in
 those sections to any beneficiary receiving income or any person  inter-
 ested  in  the principal of the trust who shall request such statements,
 OR IN THE CASE OF A POWER DURING MINORITY OR OF A POWER IN TRUST, TO THE
 BENEFICIARY OF THE POWER IN TRUST, OR TO A PERSON TO WHOM A PAYMENT  NOT
 EXCEEDING  $10,000  COULD BE MADE UNDER SUBDIVISION 1 OF SECTION 2220 OF
 THIS CHAPTER.
   § 2. The opening paragraph of subdivision 1 of  section  2307  of  the
 surrogate's  court  procedure act, as amended by chapter 474 of the laws
 of 1994, is amended to read as follows:
   Except as otherwise provided in paragraph (f) of this  subdivision  on
 the  settlement  of the account of any fiduciary other than a trustee, A
 DONEE OF A POWER DURING MINORITY OR A DONEE OF A  POWER  IN  TRUST,  the
 court  must  allow  to  him OR HER the reasonable and necessary expenses
 actually paid by him OR HER and if he OR SHE  be  an  attorney  of  this
 state  and  shall have rendered legal services in connection with his OR
 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.
              

                                                            LBD10140-01-9

 S. 5512                             2
 
 appear to the court to be just and reasonable and in addition thereto it
 must allow to the fiduciary for his OR HER services as fiduciary, and if
 there  be  more than one, apportion among them according to the services
 rendered by them respectively the following commissions:
   §  3. Section 2308 of the surrogate's court procedure act, the section
 heading and subdivision 1 as amended by chapter 503 of the laws of 1980,
 paragraph (c) of subdivision 1 as added by chapter 376 of  the  laws  of
 2001,  subdivision  2  as  amended  by  chapter 654 of the laws of 1993,
 subdivision 3 as amended by chapter 243 of the laws  of  2001,  subdivi-
 sions  4, 6, 7 and paragraph (d) of subdivision 9, as amended and subdi-
 vision 12 as added by chapter 237 of the laws of 1978, paragraph (a)  of
 subdivision  5  as amended and subdivision 13 as added by chapter 936 of
 the laws of 1984, paragraphs (a) and (b) of subdivision 6 as amended  by
 chapter 245 of the laws of 1991, and subdivision 8 as amended by chapter
 685 of the laws of 1967, is amended to read as follows:
 § 2308. Commissions  of  trustees,  DONEES  OF POWER DURING MINORITY AND
           DONEES OF POWERS IN TRUST under wills  of  persons  dying,  or
           under lifetime trusts created, on or before August 31, 1956
   1.  On  the settlement of the account of any trustee OR DONEE OF POWER
 IN TRUST under the will of a person dying on or before August 31,  1956,
 or  under a lifetime trust established on or before August 31, 1956, the
 court must allow him OR HER his OR HER reasonable and necessary expenses
 actually paid by him OR HER and if he OR SHE  be  an  attorney  of  this
 state  and  shall have rendered legal services in connection with his OR
 HER official duties, such compensation for his OR HER legal services  as
 shall  appear  to  the  court  to be just and reasonable and in addition
 thereto it must allow to the trustee OR TO THE DONEE  OF  THE  POWER  IN
 TRUST  for his OR HER services as trustee OR DONEE OF THE POWER IN TRUST
 the following commissions from TRUST principal OR  PROPERTY  SUBJECT  TO
 THE POWER IN TRUST:
   (a) For receiving principal OR PROPERTY SUBJECT TO THE POWER IN TRUST
   (1)  all  sums  of money constituting principal OR PROPERTY SUBJECT TO
 THE POWER IN TRUST not exceeding $2,000 at the rate of 3 per cent;
   (2) all additional sums of principal OR PROPERTY SUBJECT TO THE  POWER
 IN TRUST not exceeding $10,000 at the rate of 1 1/2 per cent;
   (3)  all  sums  of principal OR PROPERTY SUBJECT TO THE POWER IN TRUST
 above $12,000 at the rate of 1 1/4 per cent; and
   (b) For paying out principal OR PROPERTY SUBJECT TO THE POWER IN TRUST
 at the rate of 1 per cent.
   (c) Notwithstanding the provisions of section 8 of chapter 237 of  the
 laws  of 1978, commissions provided by paragraph (a) of this subdivision
 for receiving principal OR PROPERTY SUBJECT TO THE POWER IN TRUST  shall
 not  be  allowed to a trustee OR DONEE OF A POWER IN TRUST who qualifies
 to act as such on or after June 5, 1978, and shall  not  be  allowed  on
 additions  of  property  received on or after June 5, 1978; such commis-
 sions on any increments in property that are payable by  reason  of  any
 sale,  exchange  or liquidation of such property shall be allowed on the
 lesser of (1) the amount  of  such  increments  on  the  date  of  sale,
 exchange  or  liquidation  of  such  property and (2) the amount of such
 increments on June 5, 1978; and such commissions on  any  increments  in
 property that are payable by reason of any distribution of such property
 shall  be  allowed on the lesser of (1) the amount of such increments on
 the date of distribution of such property and (2)  the  amount  of  such
 increments on the effective date of this paragraph.

 S. 5512                             3
 
   2.  In addition to the commission allowed by subdivision one a trustee
 OR A DONEE OF A POWER IN TRUST shall be entitled to  annual  commissions
 at the following rates:
   (a)  $10.50 per $1,000 or major fraction thereof on the first $400,000
 of principal OR PROPERTY SUBJECT TO THE POWER IN TRUST;
   (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of
 principal OR PROPERTY SUBJECT TO THE POWER IN TRUST; and
   (c) $3.00 per $1,000 or major fraction thereof on all additional prin-
 cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
   Such annual commissions shall be computed either on the value  of  the
 principal  of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST
 at the end of the period for which the commissions are  payable  or,  at
 the  option of the trustee OR OF THE DONEE OF THE POWER IN TRUST, on the
 value of the principal of the trust OR OF THE PROPERTY  SUBJECT  TO  THE
 POWER IN TRUST at the beginning of such period, provided that the option
 elected  by  the  trustee  OR OF THE DONEE OF THE POWER IN TRUST for the
 first period for which such commissions are payable shall be used during
 the continuance of the trust OR OF THE POWER IN TRUST and shall be bind-
 ing on any successor or substitute trustee or trustees OR  SUCCESSOR  OR
 SUBSTITUTE  DONEES  OF  THE  POWER IN TRUST.   In the case of a trust OR
 POWER IN TRUST which prior to January 1, 1994  computed  annual  commis-
 sions  on  the  basis of a 12 month period (other than a calendar year),
 the trustee's OR DONEE'S prior election of such 12 month period shall be
 binding unless, prior to January 1, 1995, the trustee OR DONEE  makes  a
 new  election  to  compute annual commissions on the basis of a calendar
 year either on the value of the principal of the trust OR OF THE PROPER-
 TY SUBJECT TO THE POWER IN TRUST at the end of, or at the option of  the
 trustee OR DONEE OF THE POWER IN TRUST at the beginning of, the calendar
 year for which the commissions were payable, which new election shall be
 used  during  the  remaining continuance of the trust OR OF THE POWER IN
 TRUST and shall be binding on any successor  or  substitute  trustee  or
 trustees OR DONEE OR DONEES OF THE POWER IN TRUST. The computation shall
 be  made  on  the  basis of a 12 month period but the amount so computed
 payable to a trustee OR DONEE OF A POWER IN TRUST shall  be  proportion-
 ately reduced or increased for any payments made in partial distribution
 of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST or receipt
 of  any additional property into the trust OR BY THE DONEE OF A POWER IN
 TRUST within such period and shall be  proportionately  reduced  in  any
 period for which such commissions are payable to the trustee OR DONEE OF
 THE POWER IN TRUST if the period is less than 12 months. For the purpose
 of  computing  the  annual  commissions the value of any principal asset
 when received by the trust OR BY THE DONEE OF A POWER IN TRUST shall  be
 the presumptive value of the asset at the beginning and end of the peri-
 od for which such commissions are payable. In computing the value of the
 principal  of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST
 the trustee OR THE DONEE OF THE POWER IN TRUST may use  the  presumptive
 value  in  respect of any principal asset or may use the actual value of
 the asset. On the settlement of the account of the  trustee  OR  OF  THE
 DONEE  OF  A POWER IN TRUST any person interested may dispute the amount
 of any commission claimed or retained. The burden of  proving  that  the
 actual  value  of any principal asset differs from its presumptive value
 is upon the trustee, THE DONEE OF THE POWER IN  TRUST  or  other  person
 claiming the difference.
   3.  Unless  the will otherwise explicitly provides, the annual commis-
 sions allowed by subdivision two of this section shall be  payable  one-
 third  from  the  income  of the trust OR OF THE PROPERTY SUBJECT TO THE

 S. 5512                             4
 
 POWER IN TRUST and two-thirds from the principal of the  trust  OR  FROM
 THE  PROPERTY  SUBJECT TO THE POWER IN TRUST.  However, in the case of a
 trust whose definition of income is governed by 11-2.4 of  the  estates,
 powers and trusts law, such annual commissions shall be payable from the
 corpus  of  any  such  trust after allowance for the unitrust amount and
 shall not be payable out of such unitrust amount.
   4. The commissions allowed by subdivision 2 may be retained by a trus-
 tee OR DONEE OF A POWER IN TRUST provided he OR SHE  furnishes  annually
 as  of  a  date not more than 30 days prior to the end of the trust year
 selected by the trustee  OR  THE  CALENDAR  YEAR,  to  each  beneficiary
 currently  receiving  income, and to any other beneficiary interested in
 the income and to any person interested in the principal  of  the  trust
 who  shall  make a demand therefor OR TO THE BENEFICIARY OF THE POWER IN
 TRUST WHO SHALL MAKE A DEMAND THEREFOR, a statement showing the  princi-
 pal assets OR THE PROPERTY SUBJECT TO THE POWER IN TRUST on hand on that
 date,  and  at least annually or more frequently if the trustee OR DONEE
 OF A POWER IN TRUST so elects,  a  statement  showing  all  his  OR  HER
 receipts  of  income  and  principal OR PROPERTY SUBJECT TO THE POWER IN
 TRUST during the period with respect to which the statement is  rendered
 including  the  amount  of  any  commissions retained and the basis upon
 which the commissions were computed. A trustee OR DONEE OF  A  POWER  IN
 TRUST  shall  not  be deemed to have waived any commissions by reason of
 his OR HER failure to retain them at the time when  he  OR  SHE  becomes
 entitled  thereto; provided however that commissions from income for any
 given trust OR CALENDAR year shall be allowed  and  retained  only  from
 income  derived from the trust OR FROM THE PROPERTY SUBJECT TO THE POWER
 IN TRUST during that year and shall not be supplied from income on  hand
 in respect of any other trust OR CALENDAR year. If a beneficiary receiv-
 ing  income  does not desire to be furnished with any such statement his
 OR HER advice to the trustee OR TO THE DONEE OF THE POWER  IN  TRUST  to
 that  effect  in writing shall thereafter excuse the trustee OR DONEE OF
 THE POWER IN TRUST from furnishing such  statement  to  the  beneficiary
 unless  and  until  the beneficiary requests such annual statements from
 the trustee OR DONEE OF THE POWER IN TRUST.
   5. (a) During the continuance of a trust created  solely  for  public,
 religious,  charitable,  scientific,  literary, educational or fraternal
 uses and during the period of continuance of  such  a  trust  after  the
 termination  of  a life use or uses the trustee shall be entitled to and
 may retain commissions from income in an amount annually equal to 6  per
 cent of income collected in each year.
   (b) In the case of a trust created solely for public, religious, char-
 itable,  scientific, literary, educational or fraternal uses the trustee
 shall not be entitled to any commission from principal.
   (c) In the case of such a trust which continues after the  termination
 of  a  life use or uses the trustee for the period of the measuring life
 or lives shall be entitled to commissions from income and  principal  at
 the rates and according to the terms otherwise provided in this section,
 except  that  he  OR  SHE  shall  not be entitled to any commissions for
 paying out any amount of principal.
   6. (a) If the gross value of the principal of  the  trust  OR  OF  THE
 PROPERTY SUBJECT TO THE POWER IN TRUST accounted for amounts to $400,000
 or more and there is more than 1 trustee OR DONEE OF THE POWER IN TRUST,
 each  trustee  OR  DONEE  OF  THE POWER IN TRUST is entitled to the full
 compensation for receiving and paying out principal OR PROPERTY  SUBJECT
 TO  THE  POWER IN TRUST allowed herein to a sole trustee OR DONEE OF THE
 POWER IN TRUST unless there are more than 3, in which case  the  compen-

 S. 5512                             5
 
 sation  to which 3 would be entitled must be apportioned among the trus-
 tees OR DONEES OF THE POWER IN TRUST according to the services  rendered
 by  them  respectively,  unless  the  trustees OR DONEES OF THE POWER IN
 TRUST  shall  have  agreed  in  writing  among themselves to a different
 apportionment which, however, shall not provide for more than  one  full
 commission  for  any one of them. If the gross value of the principal of
 the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST accounted for
 is:
   (i) less than $100,000 and there is more than 1 trustee  OR  DONEE  OF
 THE  POWER  IN  TRUST the full compensation for receiving and paying out
 principal OR PROPERTY SUBJECT TO THE POWER IN TRUST allowed herein to  a
 sole  trustee  OR  DONEE OF THE POWER IN TRUST must be apportioned among
 them according to the services rendered by them respectively, or
   (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
 THE POWER IN TRUST is entitled to the full  compensation  for  receiving
 and  paying  out  principal  OR  PROPERTY  SUBJECT TO THE POWER IN TRUST
 allowed pursuant to this subdivision to a sole trustee OR DONEE  OF  THE
 POWER  IN  TRUST  unless there are more than 2 trustees OR DONEES OF THE
 POWER IN TRUST in which case the full compensation for paying out  prin-
 cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST allowed pursuant to this
 subdivision to 2 trustees OR DONEES OF THE POWER IN TRUST must be appor-
 tioned among them according to the services rendered by them respective-
 ly,
 unless the trustees OR DONEES OF THE POWER IN TRUST shall have agreed in
 writing  between or among themselves to a different apportionment which,
 however, shall not provide for more than one full commission for any one
 of them.
   (b) If the value of the principal of the  trust  OR  OF  THE  PROPERTY
 SUBJECT  TO  THE  POWER IN TRUST for the purpose of computing the annual
 commissions allowed by subdivision 2 amounts to  $400,000  or  more  and
 there  is  more  than  one  trustee OR DONEE OF THE POWER IN TRUST, each
 trustee OR DONEE OF THE POWER IN TRUST is entitled to  the  full  annual
 commission  allowed  herein  to  a sole trustee OR DONEE OF THE POWER IN
 TRUST unless there are more than 3, in which case the annual commissions
 to which 3 would be entitled must be apportioned among the  trustees  OR
 DONEES  OF THE POWER IN TRUST according to the services rendered by them
 respectively, unless the trustees OR DONEES OF THE POWER IN TRUST  shall
 have  agreed  in  writing  among themselves to a different apportionment
 which, however, shall not provide for more than one full annual  commis-
 sion  for any one of them. If the value of the principal OR OF THE PROP-
 ERTY SUBJECT TO THE POWER IN TRUST for  the  purpose  of  computing  the
 annual commission allowed by subdivision 2 amounts to:
   (i)  less  than  $100,000 and there is more than 1 trustee OR DONEE OF
 THE POWER IN TRUST, the annual commissions from income  and  the  annual
 commission  allowed  herein  to  a sole trustee OR DONEE OF THE POWER IN
 TRUST must be apportioned among the trustees OR DONEE OF  THE  POWER  IN
 TRUST according to the services rendered by them respectively, or
   (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
 THE  POWER  IN  TRUST  is entitled to the full annual commission allowed
 pursuant to this subdivision to a sole trustee OR DONEE OF THE POWER  IN
 TRUST  unless  there  are more than 2 trustees OR DONEES OF THE POWER IN
 TRUST in which case the full annual commissions allowed pursuant to this
 subdivision to 2 trustees OR DONEES OF THE POWER IN TRUST must be appor-
 tioned among them according to the services rendered by them respective-
 ly,

 S. 5512                             6
 
 unless the trustees OR DONEES OF THE POWER IN TRUST shall have agreed in
 writing between or among themselves to a different apportionment  which,
 however,  shall not provide for more than one full annual commission for
 any one of them.  However, if from a trust OR FROM PROPERTY SUBJECT TO A
 POWER IN TRUST having a value of $400,000 or more, or if from a trust OR
 FROM  PROPERTY SUBJECT TO A POWER IN TRUST having a value of $100,000 or
 more but less than $400,000, as the case may be, at the beginning  of  a
 trust  year OR OF THE CALENDAR YEAR IN THE CASE OF A POWER IN TRUST, any
 payments in partial distribution of the trust OR OF THE PROPERTY SUBJECT
 TO THE POWER IN TRUST shall be made during the trust OR CALENDAR year so
 as to reduce the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN  TRUST
 to a value of less than $400,000 or $100,000, as the case may be, at the
 end  of  the  trust OR CALENDAR year, then the annual commission allowed
 herein shall, on a proportionate basis, be those allowed to a trustee of
 a trust OR TO DONEES OF A POWER IN TRUST OVER PROPERTY having a value of
 $400,000 or more, of a trust OR TO DONEES OF A POWER IN TRUST OVER PROP-
 ERTY having a value of $100,000 or more but less than $400,000,  as  the
 case  may be, for the period from the beginning of the trust OR CALENDAR
 year to the date of the  distribution  and  shall,  on  a  proportionate
 basis,  be  those allowed to trustees of a trust OR TO DONEES OF A POWER
 IN TRUST OVER PROPERTY having a value of either  $100,000  or  more  but
 less  than  $400,000  or less than $100,000, as the case may be, for the
 remainder of the trust OR CALENDAR year and the part of such commissions
 payable from principal and computed from the beginning of the  trust  OR
 CALENDAR  year  to  the date of distribution shall be charged ratably to
 the property remaining in the trust and to the property distributed from
 the trust on the basis of their respective values. Further, if during  a
 trust  year  OR A CALENDAR YEAR IN THE CASE OF POWER IN TRUST additional
 property shall be received into a trust which had a value of  less  than
 $100,000 OR BY A DONEE OF A POWER IN TRUST THE PROPERTY SUBJECT TO WHICH
 HAD  A VALUE OF LESS THAN $100,000, or into a trust which had a value of
 $100,000 or more but less than $400,000 OR BY A  DONEE  OF  A  POWER  IN
 TRUST  THE PROPERTY SUBJECT TO WHICH HAD A VALUE OF $100,000 OR MORE BUT
 LESS THAN $400,000, as the case may be, at the beginning of the trust OR
 CALENDAR year so that because of the additional property  the  trust  OR
 THE  PROPERTY  SUBJECT  TO  THE  POWER  IN  TRUST  shall have a value of
 $100,000 or more or of $400,000 or more, as the case may be, at the  end
 of the trust OR CALENDAR year, then the annual commission allowed herein
 TO THE TRUSTEE OR TO THE DONEE OF THE POWER IN TRUST shall, on a propor-
 tionate basis, be those allowed to trustees of a trust OR TO DONEES OF A
 POWER IN TRUST OVER PROPERTY having a value of less than $100,000, or to
 trustees of a trust OR TO DONEES OF THE POWER IN TRUST having a value of
 $100,000  or  more  but  less than $400,000, as the case may be, for the
 period from the beginning of the trust OR CALENDAR year to the  date  of
 the  receipt  of  the  additional property and shall, on a proportionate
 basis, be those allowed to trustees of a trust OR TO DONEES OF  A  POWER
 IN  TRUST OVER PROPERTY having a value of $100,000 or more but less than
 $400,000, or TO TRUSTEES of a trust OR TO DONEES OF  A  POWER  IN  TRUST
 OVER  PROPERTY  having  $400,000  or  more,  as the case may be, for the
 remainder of the trust OR CALENDAR year.
   (c) Notwithstanding any provisions of paragraphs (a) and (b)  of  this
 subdivision  to  the  contrary,  if  during  the  continuance of a trust
 created solely for public, religious, charitable, scientific,  literary,
 educational  or fraternal uses or during the continuance of such a trust
 after the termination of a life use or uses, the annual  income  of  the
 trust  amounts  to $4,000 or more and there is more than 1 trustee, each

 S. 5512                             7
 
 trustee is entitled to the full commission allowed under  subdivision  5
 to  a  sole  trustee  unless  there  are  more than 2, in which case the
 commissions to which 2 trustees would be entitled  must  be  apportioned
 among  the  trustees  according to the services rendered by them respec-
 tively, unless they shall have agreed in writing among themselves  to  a
 different  apportionment which, however, shall not provide for more than
 one full commission to any one of them; provided however, if during  the
 continuance of a trust created solely for public, religious, charitable,
 scientific,  literary,  educational  or  fraternal uses created prior to
 April 1, 1948, the annual income of the trust amounts to $4,000 or  more
 and  there  is  more than 1 trustee each trustee is entitled to the full
 commission allowed under subdivision 5 to a sole  trustee  unless  there
 are  more than 3, in which case the commission to which 3 trustees would
 be entitled must be apportioned among  the  trustees  according  to  the
 services rendered by them respectively, unless they shall have agreed in
 writing  among  themselves  to a different apportionment which, however,
 shall not provide for more than one full commission to any one of  them.
 If  the annual income of the trust amounts to less than $4,000 and there
 is more than 1 trustee the commissions to which a sole trustee would  be
 entitled  under  subdivision  5  must  be apportioned among the trustees
 according to the services rendered  by  them  respectively  unless  they
 shall  have agreed in writing among themselves to a different apportion-
 ment.
   7. Where a trustee OR DONEE OF A POWER IN  TRUST  is  for  any  reason
 entitled  or  required  to collect the rents of and manage real property
 the net amount of rents collected and not the gross amount shall be used
 in making computation of commissions allowed by subdivision 5 hereof and
 in addition to the commissions  herein  provided  he  OR  SHE  shall  be
 allowed  and  may retain for such services 6 per cent of the gross rents
 collected, but there shall be only 1 such additional commission  regard-
 less of the number of trustees OR DONEES OF THE POWER IN TRUST. If there
 are  2  or  more trustees OR DONEES OF THE POWER IN TRUST the additional
 commission herein provided must be apportioned among them  according  to
 the services rendered by them respectively unless they shall have agreed
 in writing among themselves to a different apportionment.
   8.  A  trustee  who prior to September 1, 1966 shall have received the
 maximum amount of commissions on principal permitted by subdivision 8 of
 section 285-a of the surrogate's court act as that  subdivision  existed
 prior  to  that  date, shall not be entitled to annual principal commis-
 sions for the period from the date when he OR  SHE  shall  receive  such
 maximum  and September 1, 1966, but shall be entitled to receive commis-
 sions from and after September 1, 1966 at the rates and  in  the  manner
 provided  in  this  section. A trustee who has become entitled to annual
 principal commissions pursuant to section 285-a of the surrogate's court
 act as it existed prior to September 1, 1966, but has not received them,
 may receive an amount of commissions not in excess of the amount  he  OR
 SHE would have been entitled to if he OR SHE had taken such commissions,
 and  be  entitled  to  receive  in  addition  commissions from and after
 September 1, 1966 at the rates  and  in  the  manner  provided  in  that
 section.
   9.  A trustee who has been acting prior to July 1, 1956 shall be enti-
 tled to have commissions on principal and income theretofore received by
 him OR HER computed, allowed and paid under the methods and at the rates
 set forth herein, except as follows:
   (a) If prior to July 1,  1956  a  trustee  has  been  allowed  or  has
 retained  commissions  for  receiving and paying out or for distributing

 S. 5512                             8
 
 any item of principal he OR SHE shall be entitled to no further  commis-
 sions on the item.
   (b)  If  prior  to July 1, 1956 a trustee has been allowed or retained
 commissions on any item of  principal  received  but  not  paid  out  or
 distributed  by  him  OR  HER  he OR SHE shall be entitled to no further
 commissions for receiving the item.
   (c) Any trustee who became entitled to an annual principal  commission
 under subdivision 1 (b) of section 285-a of the surrogate's court act as
 it  existed prior to April 1, 1948 and who has not retained such commis-
 sion may retain an amount equal to one-half  of  such  annual  principal
 commission.  A trustee who because of the provisions of subdivision 2 of
 section 285-a of the surrogate's court act as it existed prior to  April
 1, 1948 either was not entitled to retain an annual principal commission
 under  subdivision  1  (b) thereof or was required to credit such annual
 principal commission against his OR HER commission for receiving princi-
 pal, may retain an amount equal to 1/2 of such annual principal  commis-
 sion.  If  a trustee has been allowed by decree or has retained any such
 annual  principal  commission  one-half  the  amount  thereof  shall  be
 deducted  from  the  amount  of  commissions  to which the trustee would
 otherwise be entitled under the provisions of subdivision 1.
   (d) The annual principal commissions allowed by subdivision 3 of  this
 section  as  it  existed  on  September  1, 1967 shall not be allowed or
 retained in respect of any trust year ending prior to April 1, 1948, but
 for any trust year ending on or after April 1, 1948 and prior to July 1,
 1956, the annual principal commission which may be allowed  or  retained
 shall  be  computed  at  the rates in effect on the date such trust year
 ended.
   (e) If prior to July 1,  1956  a  trustee  has  been  allowed  or  has
 retained  commissions on any item of income received and paid out by him
 OR HER prior to September 1, 1943 or on any item of income collected  by
 him  OR  HER subsequent to September 1, 1943 he OR SHE shall be entitled
 to no further commission on the item.
   10. The value of any property to  be  determined  in  such  manner  as
 directed by the court and the increment thereof received, distributed or
 delivered  shall be considered as money in making computation of commis-
 sions. Whenever any portion of the dividends, interests or rents payable
 to a trustee OR DONEE OF A POWER IN TRUST is required by any law of  the
 United  States  or  other governmental unit to be withheld by the person
 paying it for income tax purposes,  the  amount  so  withheld  shall  be
 deemed to have been collected.
   11.  Where  the  will provides a specific compensation to a trustee OR
 DONEE OF A POWER IN TRUST he OR SHE is not entitled to any other  allow-
 ances for his OR HER services.
   12. If a trustee of a trust OR DONEE OF A POWER IN TRUST is authorized
 or  required  by  the  terms  of  the  will to accumulate income for any
 purpose permitted by law, any income so accumulated which is  not  added
 to principal of the trust OR TO THE PRINCIPAL OF THE PROPERTY SUBJECT TO
 THE  POWER  IN  TRUST  shall be deemed a separate trust OR SEPARATE FUND
 SUBJECT TO THE POWER IN TRUST for purposes of this subdivision  and  the
 trustee  OR DONEE OF THE POWER IN TRUST shall be entitled to commissions
 in respect  thereof  at  the  rates  and  according  to  the  terms  and
 provisions  of  subdivisions  1  and  2  of  this section as though, for
 purposes of computing commissions of the trustee, income so  accumulated
 was principal.
   13.  For  the  purposes of this section, the term "trustee" shall mean
 any trustee who is not a corporate trustee AND  THE  TERM  "DONEE  OF  A

 S. 5512                             9
 
 POWER  IN  TRUST" SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF A POWER
 DURING MINORITY WHO IS NOT A CORPORATE FIDUCIARY OF A DONEE OF  A  POWER
 DURING  MINORITY  WITH THE RIGHTS AND DUTIES OF A GUARDIAN UNDER SECTION
 1714 OF THIS CHAPTER provided, however, that as used in subdivision 6 of
 this section, the term trustee shall include a corporate trustee.
   §  4. Section 2309 of the surrogate's court procedure act, the section
 heading and subdivision 1 as amended by chapter 503 of the laws of 1980,
 subdivision 2 as amended by chapter 654 of the laws of 1993, subdivision
 3 as amended by chapter 243 of the laws of 2001, paragraph (a) of subdi-
 vision 5 as amended and subdivision 11 as added by chapter  936  of  the
 laws of 1984, subdivisions 6 and 7 as amended by chapter 303 of the laws
 of  1976, paragraphs (a) and (b) of subdivision 6  as amended by chapter
 245 of the laws of 1991, and the opening paragraphs  of  paragraphs  (a)
 and  (b) of subdivision 6 as amended by chapter 514 of the laws of 1993,
 is amended to read as follows:
 § 2309. Commissions of trustees, OF DONEES OF POWERS DURING MINORITY AND
           OF DONEES OF POWERS IN TRUST under wills of persons dying,  or
           lifetime trusts established, after August 31, 1956
   1. On the settlement of the account of any trustee OR DONEE OF A POWER
 IN  TRUST  under  the  will  of a person dying after August 31, 1956, or
 under a lifetime [inter] trust established after August  31,  1956,  the
 court  must  allow  to  him  OR  HER his OR HER reasonable and necessary
 expenses actually paid by him OR HER and if he OR SHE be an attorney  of
 this state and shall have rendered legal services in connection with his
 OR  HER official duties, such compensation for his OR HER legal services
 as shall appear to the court to be just and reasonable and  in  addition
 thereto  it  must  allow to the trustee OR DONEE OF A POWER IN TRUST for
 his OR HER services as trustee OR DONEE OF A POWER IN TRUST a commission
 from principal OR FROM THE PROPERTY SUBJECT TO THE POWER IN  TRUST,  for
 paying  out all sums of money constituting principal OR PROPERTY SUBJECT
 TO THE POWER IN TRUST at the rate of 1 per cent.
   2. In addition to the commission allowed by  subdivision  1  hereof  a
 trustee OR DONEE OF A POWER IN TRUST shall be entitled to annual commis-
 sions at the following rates:
   (a)  $10.50 per $1,000 or major fraction thereof on the first $400,000
 of principal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
   (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of
 principal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
   (c) $3.00 per $1,000 or major fraction thereof on all additional prin-
 cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
   Such annual commissions shall be computed either on the value  of  the
 principal  of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST
 at the end of the period for which the commissions are  payable  or,  at
 the  option  of the trustee OR DONEE OF THE POWER IN TRUST, on the value
 of the principal of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN
 TRUST at the beginning of such period, provided that the option  elected
 by  the  trustee OR DONEE OF THE POWER IN TRUST for the first period for
 which such commissions are payable shall be used during the  continuance
 of  the  trust  OR  OF  THE  POWER  IN TRUST and shall be binding on any
 successor or substitute trustee or trustees, DONEE OR DONEES.    In  the
 case  of  a trust which prior to January 1, 1994 computed annual commis-
 sions on the basis of a 12 month period (other than  a  calendar  year),
 the  trustee's  prior  election of such 12 month period shall be binding
 unless, prior to January 1, 1995, the trustee makes a  new  election  to
 compute annual commissions on the basis of a calendar year either on the
 value  of  the principal of the trust at the end of, or at the option of

 S. 5512                            10
 
 the trustee at the beginning of, the calendar year for which the commis-
 sions were payable, which new election shall be used during the  remain-
 ing  continuance  of  the trust and shall be binding on any successor or
 substitute  trustee  or  trustees.  The computation shall be made on the
 basis of a 12-month period but the amount so computed payable to a trus-
 tee shall be proportionately reduced or increased for any payments  made
 in  partial  distribution  of the trust or the receipt of any additional
 property into the trust within such period and shall be  proportionately
 reduced  in  any  period  for  which such commissions are payable to the
 trustee if the period is less than 12 months. For the purpose of comput-
 ing the annual  commissions  the  value  of  any  principal  asset  when
 received by the trust OR DONEE OF A POWER IN TRUST shall be the presump-
 tive value of the asset at the beginning and end of the period for which
 such commissions are payable. In computing the value of the principal of
 the  trust  OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST the trustee
 OR DONEE OF THE POWER IN TRUST may use the presumptive value in  respect
 of  any principal asset or may use the actual value of the asset. On the
 settlement of the account of the trustee OR DONEE OF A  POWER  IN  TRUST
 any  person  interested may dispute the amount of any commission claimed
 or retained. The burden of proving that the actual value of any  princi-
 pal  asset  OR  ASSET  SUBJECT  TO  THE  POWER IN TRUST differs from its
 presumptive value is upon the trustee OR DONEE OF A POWER  IN  TRUST  or
 other person claiming the difference.
   3.  Unless  the will or lifetime trust instrument otherwise explicitly
 provides the annual commissions allowed by subdivision 2 shall be  paya-
 ble  one-third  from  the income of the trust OR PROPERTY SUBJECT TO THE
 POWER IN TRUST and two-thirds from the principal of the trust OR PROPER-
 TY SUBJECT TO THE POWER IN TRUST. However, in the case of a trust  whose
 definition  of  income  is  governed  by  SECTION 11-2.4 of the estates,
 powers and trusts law or a charitable remainder annuity trust or a char-
 itable remainder unitrust, as defined in section six hundred  sixty-four
 of the Internal Revenue Code of nineteen hundred eighty-six, as amended,
 such  annual  commissions  shall  be payable from the corpus of any such
 trust after allowance for the annuity or unitrust amounts and shall  not
 be payable out of such annuity or unitrust amounts.
   4. The commissions allowed by subdivision 2 may be retained by a trus-
 tee  provided  he OR SHE furnishes annually as of a date no more than 30
 days prior to the end of the trust year selected by the trustee, to each
 beneficiary currently receiving income, and  to  any  other  beneficiary
 interested  in  the income and to any person interested in the principal
 of the trust who shall make a demand therefor AND BY A DONEE OF A  POWER
 IN  TRUST  IF  HE OR SHE FURNISHES ANNUALLY AS OF A DATE NO MORE THAN 30
 DAYS PRIOR TO THE END OF THE CALENDAR YEAR TO  THE  BENEFICIARY  OF  THE
 POWER IN TRUST, a statement showing the principal assets on hand on that
 date,  and  at least annually or more frequently if the trustee OR DONEE
 OF THE POWER IN TRUST so elects, a statement  showing  all  his  OR  HER
 receipts  of  income  and  principal OR PROPERTY SUBJECT TO THE POWER IN
 TRUST during the period with respect to which the statement is  rendered
 including  the  amount  of  any  commissions retained and the basis upon
 which the commissions were computed. A trustee OR DONEE OF  A  POWER  IN
 TRUST  shall  not  be deemed to have waived any commissions by reason of
 his OR HER failure to retain them at the time when  he  OR  SHE  becomes
 entitled  thereto;  provided however that IN THE CASE OF A TRUST commis-
 sions payable from income for any given trust year shall be allowed  and
 retained  only  from  income derived from the trust during that year and
 shall not be supplied from income on hand in respect of any other  trust

 S. 5512                            11
 
 year AND IN THE CASE OF PROPERTY SUBJECT TO A POWER IN TRUST COMMISSIONS
 PAYABLE  FROM  INCOME  FOR  ANY GIVEN CALENDAR YEAR SHALL BE ALLOWED AND
 RETAINED ONLY FROM INCOME DERIVED FROM THE PROPERTY DURING THAT YEAR AND
 SHALL NOT BE SUPPLIED FROM INCOME ON HAND IN RESPECT OF ANY OTHER CALEN-
 DAR  YEAR.  If  a  beneficiary  receiving  income  does not desire to be
 furnished with any such statements his OR HER advice to the  trustee  OR
 TO THE DONEE OF THE POWER IN TRUST to that effect in writing shall ther-
 eafter excuse the trustee OR DONEE OF THE POWER IN TRUST from furnishing
 such  statement  to  the  beneficiary  unless  and until the beneficiary
 requests such annual statements from the trustee OR DONEE OF  THE  POWER
 IN TRUST.
   5.  (a)  During  the continuance of a trust created solely for public,
 religious, charitable, scientific, literary,  educational  or  fraternal
 uses  and  during  the  period  of continuance of such a trust after the
 termination of a life use or uses the trustee shall be entitled  to  and
 may  retain commissions from income in an amount annually equal to 6 per
 cent of income collected in each year.
   (b) In the case of a trust created solely for public, religious, char-
 itable, scientific, literary, educational or fraternal uses the  trustee
 shall not be entitled to any commission from principal.
   (c)  In the case of such a trust which continues after the termination
 of the measuring life use or uses the trustee  for  the  period  of  the
 measuring  life use or uses shall be entitled to commissions from income
 and principal at the rates and  according  to  the  terms  specified  in
 subdivision  2  and except in respect of principal paid out to a charity
 or for charitable uses shall be entitled to a commission for  distribut-
 ing all sums of principal at the rate specified in subdivision 1.
   6. (a) Subject to SECTION 2313 regarding multiple commissions of exec-
 utors  [or], trustees, OR DONEES OF A POWER IN TRUST CREATED under wills
 of persons dying, or lifetime trusts established, after August 31, 1993,
 if the gross value of the principal of the  trust  OR  OF  THE  PROPERTY
 SUBJECT  TO THE POWER IN TRUST accounted for amounts to $400,000 or more
 and there is more than 1 trustee OR DONEE each trustee OR DONEE is enti-
 tled to the full compensation for paying out principal allowed herein to
 a sole trustee OR DONEE unless there are more than 3, in which case  the
 compensation  to which 3 would be entitled must be apportioned among the
 trustees OR DONEES OF THE POWER  IN  TRUST  according  to  the  services
 rendered  by  them  respectively  unless  [the trustees] THEY shall have
 agreed in writing among themselves to a different  apportionment  which,
 however, shall not provide for more than one full commission for any one
 of  them.  If  the  gross  value of the principal of the trust OR OF THE
 PROPERTY SUBJECT TO THE POWER IN TRUST accounted for is:
   (i) less than $100,000 and there is more than 1 trustee  OR  DONEE  OF
 THE  POWER  IN  TRUST,  the  full  compensation for paying out principal
 allowed herein to a sole trustee OR DONEE OF THE POWER IN TRUST must  be
 apportioned  among  them  according  to  the  services  rendered by them
 respectively, or
   (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
 THE POWER IN TRUST is entitled to the full compensation for  paying  out
 principal  allowed  herein  to  a  sole trustee OR DONEE OF THE POWER IN
 TRUST unless there are more than 2 trustees OR DONEES OF  THE  POWER  IN
 TRUST  in  which  case  the  full  compensation for paying out principal
 allowed herein to 2 trustees OR DONEES OF  A  POWER  OF  TRUST  must  be
 apportioned  among  them  according  to  the  services  rendered by them
 respectively, unless the trustees OR DONEES OF THE POWER IN TRUST  shall
 have agreed in writing between or among themselves to a different appor-

 S. 5512                            12
 
 tionment  which,  however,  shall  not  provide  for  more than one full
 commission for any one of them.
   (b) Subject  to  SECTION 2313 regarding multiple commissions of execu-
 tors [or], trustees, OR DONEES OF A POWER IN TRUST CREATED  under  wills
 of persons dying, or lifetime trusts established, after August 31, 1993,
 if the value of the principal of the trust OR OF THE PROPERTY SUBJECT TO
 THE  POWER  IN TRUST for the purpose of computing the annual commissions
 allowed by subdivision 2 amounts to $400,000 or more and there  is  more
 than one trustee OR DONEE OF A POWER IN TRUST each trustee OR DONEE OF A
 POWER  IN TRUST is entitled to the full annual commission allowed herein
 to a sole trustee OR DONEE OF A POWER IN TRUST  unless  there  are  more
 than  3,  in which case the annual commissions to which 3 would be enti-
 tled must be apportioned among the trustees OR DONEES OF  THE  POWER  IN
 TRUST according to the services rendered by them respectively unless the
 trustees  OR  DONEES  OF THE POWER IN TRUST shall have agreed in writing
 among themselves to a different apportionment which, however, shall  not
 provide for more than one full annual commission for any one of them. If
 the  value  of  the principal OF THE TRUST OR OF THE PROPERTY SUBJECT TO
 THE POWER IN TRUST for the purpose of computing  the  annual  commission
 allowed by subdivision 2 amounts to:
   (i) less  than  $100,000  and there is more than 1 trustee OR DONEE OF
 THE POWER IN TRUST, the annual commission allowed herein to a sole trus-
 tee OR DONEE OF A POWER IN TRUST must be apportioned among the  trustees
 OR  DONEES  OF  THE POWER IN TRUST according to the services rendered by
 them respectively, or
   (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
 THE POWER IN TRUST is entitled to the  full  annual  commission  allowed
 herein  to  a sole trustee OR DONEE OF A POWER IN TRUST unless there are
 more than 2 trustees OR DONEES OF THE POWER IN TRUST in which  case  the
 full  annual  commissions  allowed  herein  to 2 trustees OR DONEES OF A
 POWER IN TRUST must be apportioned among them according to the  services
 rendered  by  them  respectively,  unless  the trustees OR DONEES OF THE
 POWER IN TRUST shall have agreed in writing between or among  themselves
 to  a different apportionment which, however, shall not provide for more
 than one full annual commission for any one of them. However, if from  a
 trust  OR  FROM  PROPERTY  SUBJECT TO A POWER IN TRUST having a value of
 $400,000 or more, or if from a trust OR FROM PROPERTY SUBJECT TO A POWER
 IN TRUST having a value of $100,000, or more but less than $400,000,  as
 the  case  may  be,  at the beginning of a trust year OR OF THE CALENDAR
 YEAR any payments in partial distribution of the trust OR OF THE PROPER-
 TY SUBJECT TO THE POWER IN TRUST shall  be  made  during  the  trust  OR
 CALENDAR  year  so as to reduce the trust OR THE PROPERTY SUBJECT TO THE
 POWER IN TRUST to a value of less than $400,000 or $100,000, as the case
 may be, at the end of the  trust  OR  CALENDAR  year,  then  the  annual
 commissions  allowed  herein  shall,  on a proportionate basis, be those
 allowed to trustees of a trust OR TO DONEES OF A  POWER  IN  TRUST  OVER
 PROPERTY  having a value of $400,000 or more, or of a trust OR TO DONEES
 OF A POWER IN TRUST OVER PROPERTY having a value of $100,000 or more but
 less than $400,000, as the case may be, for the period from  the  begin-
 ning  of  the trust OR CALENDAR year to the date of the distribution and
 shall, on a proportionate basis, be those allowed to trustees of a trust
 OR TO DONEES OF A POWER IN TRUST OVER PROPERTY having a value of  either
 $100,000  or  more  but less than $400,000 or less than $100,000, as the
 case may be, for the remainder of the trust OR  CALENDAR  year  and  the
 part  of  such  commissions payable from principal and computed from the
 beginning of the trust OR CALENDAR year  to  the  date  of  distribution

 S. 5512                            13
 
 shall be charged ratably to the property remaining in the trust OR STILL
 SUBJECT TO THE POWER IN TRUST AFTER SUCH DISTRIBUTION and to the proper-
 ty  distributed  from  the  trust  OR TO THE BENEFICIARY OF THE POWER IN
 TRUST  on  the  basis  of  their respective values. Further, if during a
 trust OR CALENDAR year additional property  shall  be  received  into  a
 trust  which  had a value of less than $100,000 OR BY A DONEE OF A POWER
 IN TRUST THE PROPERTY  SUBJECT  TO  WHICH  HAD  A  VALUE  OF  LESS  THAN
 $100,000, or into a trust which had a value of $100,000 or more but less
 than  $400,000 OR BY A DONEE OF A POWER IN TRUST THE PROPERTY SUBJECT TO
 WHICH HAD A VALUE OF $100,000 OR MORE BUT LESS  THAN  $400,000,  as  the
 case  may  be,  at  the beginning of the trust year OR CALENDAR YEAR, so
 that because of the  additional  property  the  trust  OR  THE  PROPERTY
 SUBJECT  TO  THE POWER IN TRUST has a value of $100,000 or more but less
 than $400,000, or of $400,000 or more, as the case may be, at the end of
 the trust OR CALENDAR year, then the annual commissions  allowed  herein
 TO THE TRUSTEE OR TO THE DONEE OF THE POWER IN TRUST shall, on a propor-
 tionate basis, be those allowed to trustees of a trust OR TO DONEES OF A
 POWER IN TRUST OVER PROPERTY having a value of less than $100,000, or to
 trustees  of  a  trust  OR  TO  DONEES OF A POWER IN TRUST OVER PROPERTY
 having a value of $100,000 or more but less than $400,000, as  the  case
 may  be, for the period from the beginning of the trust OR CALENDAR year
 to the date of the receipt of the additional property and  shall,  on  a
 proportionate  basis,  be  those  allowed  to  trustees of a trust OR TO
 DONEES OF A POWER IN TRUST OVER PROPERTY having a value of  $100,000  or
 more but less than $400,000, or TO TRUSTEES of a trust OR TO DONEES OF A
 POWER  IN  TRUST  OVER PROPERTY having $400,000 or more, as the case may
 be, for the remainder of the trust OR CALENDAR year.
   (c) Notwithstanding any provision of paragraphs (a) and  (b)  of  this
 subdivision  to  the  contrary, if during the continuance of a trust not
 measured at any time directly or indirectly by a life or lives or during
 the continuance of a trust after the termination of the  measuring  life
 or  lives,  the annual income of the trust amounts to $4,000 or more and
 there is more than 1 trustee, each  trustee  is  entitled  to  the  full
 commissions  allowed  under subdivision 5 to a sole trustee unless there
 are more than 2, in which case the commissions to which 2 trustees would
 be entitled must be apportioned among  the  trustees  according  to  the
 services  rendered by them respectively unless they shall have agreed in
 writing among themselves to a different  apportionment  which,  however,
 shall  not provide for more than one full commission to any one of them.
 If the annual income of the trust amounts to less than $4,000 and  there
 is  more than 1 trustee the commissions to which a sole trustee would be
 entitled under subdivision 5 must  be  apportioned  among  the  trustees
 according  to  the  services  rendered  by them respectively unless they
 shall have agreed in writing among themselves to a different  apportion-
 ment.
   7.  Where  a  trustee  OR  DONEE OF A POWER IN TRUST is for any reason
 entitled or required to collect the rents of and  manage  real  property
 the net amount of rents collected and not the gross amount shall be used
 in  making  computation  of  commissions allowed by subdivision 5 and in
 addition to the commissions herein provided he OR SHE shall  be  allowed
 and may retain for such services 6 [per cent] PERCENT of the gross rents
 collected,  but  there  shall  be  only  one  such additional commission
 regardless of the number of trustees OR DONEES OF THE POWER IN TRUST. If
 there are 2 or more trustees OR DONEES OF THE POWER IN TRUST  the  addi-
 tional  commission  herein  provided  for must be apportioned among them
 according to the services rendered  by  them  respectively  unless  they

 S. 5512                            14

 shall  have agreed in writing among themselves to a different apportion-
 ment.
   8.  If  a trustee OR DONEE OF A POWER IN TRUST is either authorized or
 required by the terms of the will to accumulate income for  any  purpose
 permitted  by  law  he  OR SHE shall be entitled to commissions from the
 income so accumulated, including income derived from the  investment  of
 such  accumulated  income,  at  the  rate of 2 [per cent] PERCENT of the
 first $2,500 of such income distributed during the administration of the
 trust and 1 [per cent] PERCENT of all such income distributed in  excess
 of $2,500 and he OR SHE may retain such commissions at the time or times
 such income is distributed.
   9.  The  value  of  any  property  to  be determined in such manner as
 directed by the court and the increment thereof received, distributed or
 delivered, shall be considered as money in making computation of commis-
 sions. Whenever any portion of the dividends, interests or rents payable
 to a trustee OR TO A DONEE OF A POWER IN TRUST is required by any law of
 the United States or other governmental  unit  to  be  withheld  by  the
 person  paying  it for income tax purposes, the amount so withheld shall
 be deemed to have been collected.
   10. Where the will provides a specific compensation for a  trustee  OR
 FOR  A  DONEE OF A POWER IN TRUST he OR SHE is not entitled to any other
 allowances for his OR HER services.
   11. For the purposes of this section, the term  "trustee"  shall  mean
 any  trustee  who  is  not  a corporate trustee AND THE TERM "DONEE OF A
 POWER IN TRUST" SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF  A  POWER
 DURING MINORITY WHO IS NOT A CORPORATE FIDUCIARY provided, however, that
 as used in subdivision 6 of this section, the term trustee shall include
 a corporate trustee AND FURTHER PROVIDED THAT THE TERM "PROPERTY SUBJECT
 TO  THE POWER IN TRUST" SHALL INCLUDE PROPERTY SUBJECT TO A POWER DURING
 MINORITY.
   § 5. Section 2312 of the surrogate's court procedure act, as added  by
 chapter  936 of the laws of 1984, subdivisions 2, 3, 7, 9 and paragraphs
 (d) and (e) of subdivision 10 as amended by chapter 511 of the  laws  of
 1987,  paragraph  (b)  of subdivision 4 as amended by chapter 245 of the
 laws of 1991, and subdivision 5 as amended by chapter 243 of the laws of
 2001, is amended to read as follows:
 § 2312. Commissions of corporate  trustees,  INCLUDING  WHEN  ACTING  AS
           DONEES OF POWERS DURING MINORITY OR DONEES OF POWER IN TRUST
   1.  If  the  will  or  lifetime  trust instrument makes provisions for
 specific rates or amounts of commissions (other than a general reference
 to commissions allowed by law or words of like import) for  a  corporate
 trustee,  or, if a corporate trustee has agreed to accept specific rates
 or amounts of commissions, a corporate trustee, WHETHER AS TRUSTEE OR AS
 DONEE OF A POWER IN TRUST, INCLUDING FOR PURPOSES  OF  THIS  SECTION  AS
 DONEE  OF  A  POWER DURING MINORITY, CREATED UNDER THE PROVISIONS OF THE
 WILL OR LIFETIME TRUST INSTRUMENT, shall be entitled to  be  compensated
 in accordance with such provisions or agreement, as the case may be.
   2. For trusts having a principal value of more than four hundred thou-
 sand dollars AND AS DONEE OF A POWER IN TRUST WHERE THE PROPERTY SUBJECT
 TO  THE  POWER,  INCLUDING  FOR  PURPOSES  OF  THIS SECTION THE PROPERTY
 SUBJECT TO A POWER DURING MINORITY, HAS A PRINCIPAL VALUE OF  MORE  THAN
 FOUR  HUNDRED THOUSAND DOLLARS and subject to the provisions of subdivi-
 sion 4 of this section, if the will or lifetime  trust  instrument  does
 not  make  provisions  for specific rates or amounts of commissions, or,
 contains only a general reference to commissions allowed by law or words
 of like import, a corporate trustee shall be entitled  to  such  commis-

 S. 5512                            15
 
 sions  as may be reasonable, and the court, upon application of a person
 interested in the trust OR IN THE FUND HELD BY THE CORPORATE TRUSTEE  AS
 DONEE  OF A POWER IN TRUST, may review the reasonableness of the commis-
 sion of such corporate trustee.
   3. Subject to the provisions of paragraph (a) of subdivision 4 of this
 section  and  regardless of the principal value of the trust: (a) during
 the continuance of a trust created solely for public, religious,  chari-
 table,  scientific,  literary,  educational or fraternal uses and during
 the period of continuance of such a trust after  the  termination  of  a
 life use or uses a corporate trustee shall be entitled to and may retain
 commissions from income in accordance with the provisions of subdivision
 1 or 2 hereof, as the case may be.
   (b) In the case of a trust created solely for public, religious, char-
 itable,  scientific, literary, educational or fraternal uses a corporate
 trustee shall not be entitled to any commission from principal.
   (c) In the case of such a trust which continues after the  termination
 of  the measuring life use or uses a corporate trustee for the period of
 the measuring life use or uses shall be  entitled  to  commissions  from
 income  and  principal according to the provisions of subdivision 1 or 2
 hereof, as the case may be, and except in respect of principal paid  out
 to  a  charity  or for charitable uses shall be entitled to a commission
 for distributing all sums of principal in accordance with the provisions
 of subdivision 1 or 2 hereof, as the case may be.
   4. Notwithstanding anything contained in this  chapter,  the  estates,
 powers and trusts law or any other provision of law to the contrary,
   (a)  Except as otherwise provided by paragraph (b) of this subdivision
 and subdivision three of this section, a corporate trustee of any  trust
 created  under will or lifetime trust instrument, OR AS DONEE OF A POWER
 IN TRUST CREATED UNDER WILL OR LIFETIME INSTRUMENT, whether in existence
 on or after the effective date of this section,  shall  be  entitled  to
 receive  at  least  the  compensation provided for an individual trustee
 under subdivisions 1, 2, 5 (BUT ONLY AS TRUSTEE), 6, 7 and 12 of section
 2308 and subdivisions 1, 2, 5 (BUT ONLY AS  TRUSTEE),  6,  7  and  8  of
 section  2309, as the case may be, in effect after the effective date of
 this section, at the time and in the manner provided by  such  sections,
 unless the will or lifetime trust instrument or an agreement between the
 trustee  and  the  testator  or  grantor or by the trustee shall provide
 otherwise.
   (b) A corporate trustee shall, in addition to the compensation permit-
 ted by the provisions of paragraph (a) of this subdivision, be  entitled
 to  annual  commissions at the rate of not more than $12.35 per thousand
 or major fraction thereof, in lieu of the  annual  commissions  provided
 under  paragraph  (a)  of this subdivision, on trusts having a principal
 value of not more than four hundred thousand dollars AND SHALL BE  ENTI-
 TLED TO ANNUAL COMMISSIONS AT THE SAME RATE AS DONEE OF A POWER IN TRUST
 WHERE  THE  PROPERTY  SUBJECT  TO THE POWER HAS A PRINCIPAL VALUE OF NOT
 MORE THAN FOUR HUNDRED THOUSAND DOLLARS,  and  such  annual  commissions
 shall  be  deemed  reasonable  compensation, unless the will or lifetime
 trust instrument or an agreement between the corporate trustee  and  the
 testator or grantor or by the corporate trustee shall provide otherwise.
 A  corporate  trustee shall be entitled to receive such commissions from
 time to time during the trust OR CALENDAR year and  shall  otherwise  be
 governed  by  the  provisions of sections 2308 and 2309, as the case may
 be, in effect from time to time.
   5. Unless the will or lifetime  trust  instrument  expressly  provides
 otherwise, the commissions allowable by subdivision 1, 2 or 4 hereof, as

 S. 5512                            16
 
 the case may be, shall be payable one-third from the income of the trust
 OR  FROM  THE  INCOME  OF THE PROPERTY SUBJECT TO THE POWER IN TRUST and
 two-thirds from the principal of the trust OR FROM THE PROPERTY  SUBJECT
 TO THE POWER IN TRUST.  However, in the case of a trust whose definition
 of  income  is  governed  by  SECTION  11-2.4 of the estates, powers and
 trusts law or a charitable  remainder  annuity  trust  or  a  charitable
 remainder  unitrust, as defined in section six hundred sixty-four of the
 Internal Revenue Code of nineteen hundred eighty-six, as  amended,  such
 commissions  shall be payable from the principal of any such trust after
 allowance for the annuity or unitrust amounts and shall not  be  payable
 out of such annuity or unitrust amounts.
   6.  The  commissions  allowed by subdivision 1, 2 or 4 thereof, as the
 case may be, may be retained, at any time or from time  to  time  during
 the  year  in which such commissions are earned, by a corporate trustee,
 provided it furnishes annually as of a date no more than 30  days  prior
 to  the end of the year selected by the corporate trustee, to each bene-
 ficiary currently receiving income, and to any other beneficiary  inter-
 ested in the income and to any person interested in the principal of the
 trust  who  shall make a demand therefor, AND, WHEN ACTING AS DONEE OF A
 POWER IN TRUST, TO THE BENEFICIARY OF THE POWER IN  TRUST,  a  statement
 showing  the principal assets OR ASSETS SUBJECT TO THE POWER IN TRUST on
 hand on that date, and at least annually or more frequently if the trus-
 tee so elects, a statement showing all his OR HER receipts of income and
 principal OR OF PROPERTY SUBJECT TO THE POWER IN TRUST during the period
 with respect to which the statement is rendered including the amount  of
 any  commissions  retained and the basis upon which the commissions were
 computed. A corporate trustee shall not be deemed  to  have  waived  any
 commissions  by reason of its failure to retain them at the time when it
 becomes entitled thereto; provided however that commissions payable from
 income for any such year shall be allowed and retained only from  income
 derived  from  the trust during such year and shall not be supplied from
 income on hand in respect of any other year. If a beneficiary  receiving
 income OR A BENEFICIARY OF A POWER IN TRUST OF WHICH THE CORPORATE TRUS-
 TEE  IS  DONEE  does not desire to be furnished with any such statements
 his OR HER advice to the trustee to that effect in writing shall  there-
 after  excuse  the  corporate trustee from furnishing such statements to
 the beneficiary unless and until the beneficiary  requests  such  annual
 statements  from the trustee. Upon enactment of, and subject to subdivi-
 sion 1 of this section, a corporate trustee shall  continue  to  receive
 commissions in the manner provided for a trustee OR WHEN ACTING AS DONEE
 OF  A  POWER  IN  TRUST IN THE MANNER PROVIDED FOR A DONEE OF A POWER IN
 TRUST under sections 2308 and 2309, as the case may be, in effect  imme-
 diately  before  the effective date of this section until the end of the
 then current trust OR CALENDAR year, and thereafter, a corporate trustee
 may receive commissions in accordance with the provisions of subdivision
 2 or 4 of this section. A corporate trustee shall not  change  from  the
 commissions  provided  for by subdivision 2 or 4 of this section, as the
 case may be, during a trust's calendar or fiscal year  OR  THE  CALENDAR
 YEAR  IN THE CASE OF A POWER IN TRUST but a corporate trustee may change
 from the commissions provided for by subdivision 2  to  the  commissions
 provided  for  by  subdivision 4 of this section, or vice versa, only at
 the beginning of a calendar or fiscal year of a trust OR A CALENDAR YEAR
 IN THE CASE OF A POWER IN TRUST, as the case may be.
   7. On the settlement of the account of any trustee OR DONEE OF A POWER
 IN TRUST under a will or lifetime trust instrument, in addition  to  the
 commissions  provided  for  by this section, the court must allow to the

 S. 5512                            17
 
 corporate trustee INCLUDING A CORPORATE TRUSTEE ACTING  AS  DONEE  OF  A
 POWER IN TRUST THE corporate trustee's reasonable and necessary expenses
 actually paid by the trustee.
   8.  The  value  of  any  property  to  be determined in such manner as
 directed by the court and the increment thereof received, distributed or
 delivered, shall be considered as money in making computation of commis-
 sions. Whenever any portion of the dividends, interests, rents or  other
 income  payable to a trustee OR DONEE OF A POWER IN TRUST is required by
 any law of the United States or other governmental unit to  be  withheld
 by  the person paying it for income tax purposes, the amount so withheld
 shall be deemed to have been collected.
   9. A trustee who prior to September 1, 1966 shall  have  received  the
 maximum amount of commissions on principal permitted by subdivision 8 of
 section  285-a  of the surrogate's court act as that subdivision existed
 prior to that date, shall not be entitled to  annual  principal  commis-
 sions  for  the  period from the date when he OR SHE shall have received
 such maximum to September 1, 1966, but  shall  be  entitled  to  receive
 commissions  from  and  after  September 1, 1966 at the rates and in the
 manner provided in section 2308 as in effect immediately  before  enact-
 ment  of  this  section.  A  trustee who is entitled to annual principal
 commissions pursuant to section 285-a of the surrogate's court act as it
 existed prior to September 1, 1966,  but  has  not  received  them,  may
 receive  an  amount of commissions not in excess of the amount he OR SHE
 would have been entitled to if he OR SHE had taken such commissions, and
 be entitled to receive in addition commissions from and after  September
 1, 1966 at the rates and in the manner provided in section 285-a of this
 act.
   10. A trustee who has been acting prior to July 1, 1956 shall be enti-
 tled to have commissions on principal and income theretofore received by
 him OR HER computed, allowed and paid under the methods and at the rates
 set forth herein, except as follows:
   (a)  If  prior  to  July  1,  1956  a  trustee has been allowed or has
 retained commissions for receiving and paying out  or  for  distributing
 any  item of principal he OR SHE shall be entitled to no further commis-
 sions on the item.
   (b) If prior to July 1, 1956 a trustee has been  allowed  or  retained
 commissions  on  any  item  of  principal  received  but not paid out or
 distributed by him OR HER he OR SHE shall  be  entitled  to  no  further
 commissions for receiving the item.
   (c)  Any trustee who became entitled to an annual principal commission
 under subdivision 1 (b) of section 285-a of the surrogate's court act as
 it existed prior to April 1, 1948 and who has not retained such  commis-
 sion  may  retain  an  amount equal to one-half of such annual principal
 commission. A trustee who because of the provisions of subdivision 2  of
 section  285-a of the surrogate's court act as it existed prior to April
 1, 1948 either was not entitled to retain an annual principal commission
 under subdivision 1 (b) thereof or was required to  credit  such  annual
 principal commission against his OR HER commission for receiving princi-
 pal,  may  retain  an  amount equal to one-half of such annual principal
 commission. If a trustee has been allowed by decree or has retained  any
 such  annual  principal  commission one-half the amount thereof shall be
 deducted from the amount of  commissions  to  which  the  trustee  would
 otherwise  be  entitled  under the provisions of subdivision 1 of surro-
 gate's court procedure act section 2308.
   (d) The annual principal  commissions  allowed  by  subdivision  3  of
 surrogate's  court procedure act section 2308 as it existed on September

 S. 5512                            18
 
 1, 1967 shall not be allowed by decree or retained  in  respect  of  any
 trust  year ending prior to April 1, 1948, but for any trust year ending
 on or after April 1, 1948 and prior to July 1, 1956, the annual  princi-
 pal  commission  which  may  be  allowed  by decree or retained shall be
 computed at the rates in effect on the date such trust year ended.
   (e) If prior to July 1, 1956 a trustee has been allowed by  decree  or
 has  retained commissions on any item of income received and paid out by
 him OR HER prior to September 1, 1943 or on any item of income  received
 by  him  OR HER subsequent to September 1, 1943 he OR SHE shall be enti-
 tled to no further commission on the item.
   (F) FOR PURPOSES OF THIS SECTION, THE TERM "DONEE OF A POWER IN TRUST"
 SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF A POWER  DURING  MINORITY
 WHO IS A CORPORATE FIDUCIARY AND THE TERM "PROPERTY SUBJECT TO THE POWER
 IN TRUST" SHALL INCLUDE PROPERTY SUBJECT TO A POWER DURING MINORITY.
   §  6.  Section 2313 of the surrogate's court procedure act, as amended
 by chapter 471 of the laws of 1995, is amended to read as follows:
 § 2313. Multiple commissions of executors or trustees, DONEES OF  POWERS
           DURING  MINORITY,  OR  DONEES OF POWER IN TRUST under wills of
           persons dying, or lifetime trusts  established,  after  August
           31, 1993
   With  respect  to  wills  of  persons dying, or lifetime trusts estab-
 lished, after August 31, 1993, if there are more than two  executors  or
 trustees,  DONEES  OF  A  POWER DURING MINORITY, OR DONEES OF A POWER IN
 TRUST, no more than two commissions shall be allowed unless the decedent
 OR CREATOR has specifically provided otherwise in a signed writing,  and
 the  compensation thus allowable must be apportioned among the fiduciar-
 ies OR DONEES OF THE POWER IN TRUST according to the  services  rendered
 by  them  respectively  unless  they  shall have agreed in writing among
 themselves to  a  different  apportionment  which,  however,  shall  not
 provide for more than one full commission for any one of them.
   §  7. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law.