Legislation
SECTION 2311
Ex parte application for advance payment of commissions 1
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 23
§ 2311. Ex parte application for advance payment of commissions
1. At any time during the administration of an estate and irrespective
of the pendency of a particular proceeding a fiduciary may present to
the court from which his letters issued a petition praying that he be
permitted to receive a sum on account of the commissions to which he
would be entitled if he were then filing his account and it were
judicially settled, which must show that unless he is allowed such sum
on account of commissions he or the estate will be deprived of
substantial advantages under the income tax laws of the United States or
the state of New York or that he will suffer inconvenience or hardship
or that all persons whose rights or interests would be affected by the
payment applied for are persons under no legal disability and have by
acknowledged instrument consented thereto. No notice of the application
shall be required by the court.
2. If the application be entertained the court may award a sum on
account of commissions or make such other order or decree, if any, as
justice shall require.
3. In all cases where a payment on account of commissions is directed
by the court the payment on account shall not exceed the receiving
commissions due the fiduciary, except that the court may award a greater
sum where all persons whose rights or interests are affected by the
payment are persons under no legal disability and by acknowledged
instrument consent thereto.
4. The total expenses of the application shall be borne by the
fiduciary, by the estate, or shall be apportioned between them in such
ratio as the court may determine according to the benefit derived from
the payments.
5. The order or decree authorizing the payment on account shall
require the fiduciary to file a bond in the amount of the payment
securing its return if and to the extent that the payment is disallowed,
except that no such bond shall be required where the fiduciary has
already filed a bond pursuant to law or is a corporate fiduciary or
where all persons whose rights or interests would be affected by the
payment are persons under no legal disability and by acknowledged
instrument consent to waive a bond or where the will specifically
dispenses with such a bond.
1. At any time during the administration of an estate and irrespective
of the pendency of a particular proceeding a fiduciary may present to
the court from which his letters issued a petition praying that he be
permitted to receive a sum on account of the commissions to which he
would be entitled if he were then filing his account and it were
judicially settled, which must show that unless he is allowed such sum
on account of commissions he or the estate will be deprived of
substantial advantages under the income tax laws of the United States or
the state of New York or that he will suffer inconvenience or hardship
or that all persons whose rights or interests would be affected by the
payment applied for are persons under no legal disability and have by
acknowledged instrument consented thereto. No notice of the application
shall be required by the court.
2. If the application be entertained the court may award a sum on
account of commissions or make such other order or decree, if any, as
justice shall require.
3. In all cases where a payment on account of commissions is directed
by the court the payment on account shall not exceed the receiving
commissions due the fiduciary, except that the court may award a greater
sum where all persons whose rights or interests are affected by the
payment are persons under no legal disability and by acknowledged
instrument consent thereto.
4. The total expenses of the application shall be borne by the
fiduciary, by the estate, or shall be apportioned between them in such
ratio as the court may determine according to the benefit derived from
the payments.
5. The order or decree authorizing the payment on account shall
require the fiduciary to file a bond in the amount of the payment
securing its return if and to the extent that the payment is disallowed,
except that no such bond shall be required where the fiduciary has
already filed a bond pursuant to law or is a corporate fiduciary or
where all persons whose rights or interests would be affected by the
payment are persons under no legal disability and by acknowledged
instrument consent to waive a bond or where the will specifically
dispenses with such a bond.