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Warren's Heaton on Surrogate's Court Practice
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

8-103 Warren's Heaton on Surrogate's Court Practice 103.syn


Compensation of Fiduciaries


Linda B. Hirschon, Greenberg Traurig, New York;Andrew L. Martin, Esq. Chief Court Attorney--Referee, Surrogate's Court, Nassau County;Eugene E. Peckham, Surrogate, Broome County;C. Raymond Radigan, Chairman, EPTL-SCPA Legislative Advisory Committee;Joshua S. Rubenstein;Peter N. Wells, former Surrogate, Onondaga County;* Chapter 103 was revised by R. Mark Davis, Esq., Engel & Davis, LLP, New York.

Chapter Summary


As a general rule, commissions are payable to a fiduciary of an estate in New York only after approval of the fiduciary's accounting. However, corporate trustees may retain annual commissions. Fiduciaries are also entitled to reimbursement for certain "reasonable and necessary" expenses. This chapter, from Warren's Heaton on Surrogate's Court Practice (Matthew Bender), covers the provisions of Article 23 of the SCPA which apply to the amount of compensation of trustees and other fiduciaries. The chapter further explains how the courts have applied the reasonable and necessary standard to expenses, and the timing of payment and advances. The chapter also lists other provisions of the SCPA, the EPTL, CPLR and Mental Hygiene Law which apply to fiduciary compensation.

The commissions of "fiduciaries" other than trustees are governed by SCPA 2307, and the chapter first addresses the types of administrators, executors, and guardians to which this section specifically applies. The chapter next discusses commissions of non-corporate (individual) trustees for both testamentary and inter vivos trusts. Statutory commissions under the SCPA are different for testamentary and inter vivos trusts originated on or before August 31, 1956, and those originated thereafter, and the chapter explains the statutory differences in the commission rates available to the trustee.

For corporate trustees, commissions are governed by statutory rates enacted in SCPA 2312, regardless of a trust's date of origin. The effect of this provision is that a trust may bear higher commissions than the creator considered, and the chapter discusses case law regarding whether a corporate trustee may resign in favor of an individual trustee in order to avoid detriment to the beneficiaries. The chapter further discusses the impact of provisions in a trust instrument or agreement on corporate trustee commissions otherwise determined under the statute. Corporate trustees of trusts over $400,000 are entitled to "reasonable compensation," and the chapter examines case law applying a list of factors used to determine "reasonableness" of fees. The discussion extends to compensation of corporate trustees of charitable trusts. Next, the chapter addresses allocation of payment of annual commissions of corporate trustees between income and principal, and annual statements required of corporate trustees.

In addition to compensation of trustees, the chapter covers provisions of the EPTL and SCPA allowing for the "reasonable and necessary expenses" of a fiduciary actually paid by the fiduciary in the administration of the estate. Reasonable and necessary expenses include attorney's fees, and the chapter explains how the court determines if the expenses and fees meet the statutory standards, addressing in particular determination of reasonableness for attorneys' fees of an attorney-fiduciary. The chapter also considers when a fiduciary may apply for advance payment of legal fees, and denial of legal fees for failure to comply with court rules. Finally, the chapter covers clerical, stenographic, travel and other miscellaneous expenses of the fiduciary; costs incurred in continuing the decedent's business; when commissions of corporate trustees may be reviewed; and commissions for multiple trustees.

Warren's Heaton on Surrogate's Court Practice (Matthew Bender) provides comprehensive coverage and analysis of New York Probate and Estates practice issues. Accepted by the courts as the leading authority on practice in Surrogate's Court, topics include jurisdiction, intestacy, probate, appointment of representatives and guardians, estate administration, fiduciary duties, accounting, commissions and fees, litigation, Federal and New York estate tax, and construction of wills and trusts. The treatise covers case law affecting substance and procedure; it includes analysis of SCPA, EPTL, and related statutes; it provides procedural guidance; and it includes over 1,000 forms including official New York Surrogate's Court Forms and current Federal and New York estate tax forms with explanations. The treatise also covers Reformation and Trust-splitting issues, Supplemental Needs Trusts, Uniform Transfers to Minors, and Revocable Living Trusts.


New York surrogate's court,surrogate's court,fiduciary compensation,fiduciary commissions,corporate trustee commissions,fiduciary expenses,Surrogate's Court Procedure Act,SCPA,Mental Hygiene Law of New York,non-corporate trustee commissions,advance payment of commissions to trustees,reasonable and necessary expenses


For a complete discussion of jurisdiction and procedural matters, see Chapter 2, Jurisdiction; Powers of the Surrogate.

For complete discussion of powers and duties of the estate representative, see Chapter 61, Fiduciary Duties, Powers, and Liabilities Generally.

For further discussion of other commissions and fees, see also Chapter 104, Costs and Allowances; and Chapter 105, Court Fees.

For complete discussion of attorney's fees, see Chapter 106, Attorney's Fees.


For comprehensive analysis of substantive and procedural law of estate administration in New York's Surrogate's Courts, see New York Estate Administration (Matthew Bender).

For forms of pleadings see Bender's Forms for the Civil Practice: Estate & Probate (Volumes 30 to 40) covering the Surrogate's Court Procedure Act (SCPA) and Estates, Powers and Trusts Law (EPTL) (Matthew Bender).

LexisNexis Answer Guide New York Surrogate's Court cites seminal cases and references to codes and court rules, and provides checklists and practice pointers (Matthew Bender).

See Modern Estate Planning (Matthew Bender) for coverage of all key estate planning topics, including gift taxation; transfers and interests subject to estate and gift taxation; estate and gift tax deductions; exclusions and credits; and generation-skipping transfers.

See Current Legal Forms for Estate Planning (Matthew Bender) for a wealth of sample estate planning forms, drafting guidance and expert legal commentary to assist in the fundamental and often time-consuming task of document drafting.
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