MEMO TO:
Alexsei Demo US
RESEARCH ID:
#400056280ca304
JURISDICTION:
State
STATE/FORUM:
New York, United States of America
ANSWERED ON:
December 20, 2021
CLASSIFICATION:
Estates and trusts

Issue:

May the court decline to award an estate executor commissions if the executor’s conduct has unreasonably delayed the distribution of the estate’s assets to the beneficiaries?

Facts:

The testator died five years ago. The executor of the estate is also one of the beneficiaries. Upon appointment as executor, the executor commenced unmeritorious litigation against one of the beneficiaries which has now been resolved in the beneficiary’s favor. None of the estate assets have been distributed to the other beneficiaries in the last five years.

Conclusion:

Executors are generally entitled to a commission as compensation for the services they render in their fiduciary capacity to the estate. The executor's commissions may not be denied unless the fiduciary is derelict in the performance of their duties (In re Barker, N.Y. Surr. Ct. Proc. Act § 2307, In re Rubinstein, Matter of Smith)

The decision as to whether an executor shall be denied commissions is within the discretion of the surrogate. (Matter of Smith, In re Rubinstein)

If an executor acts improperly during estate administration, including causing unreasonable delay, the surrogate may reduce the commissions or deny them entirely. (N.Y. Comp. Codes R. & Regs. tit. 22 § 207.42, Matter of Smith, In re Barker, Matter of Quattrocchi, Matter of Rozycki, In re Rubinstein)

Although there is no set standard time for completion of estate administration, courts have found longer than two years allows for an inquiry by the court. (N.Y. Comp. Codes R. & Regs. tit. 22 § 207.42, In re Rubinstein, Matter of Rozycki, Matter of Quattrocchi)

Law:

N.Y. Surr. Ct. Proc. Act § 2307 provides that an executor shall receive reasonable and necessary expenses actually paid by him or her:

1. 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 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:

(a) For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent.

(b) For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent.

(c) For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent.

(d) For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 1/2 percent.

(e) For receiving and paying out all sums above $5,000,000 at the rate of 2 percent.

(f) If the will makes provisions for specific rates or amounts of commissions for a corporate executor, or, if a corporate executor has agreed to accept specific rates or amounts of commissions, or, if the will provides that a corporate executor shall receive commissions as provided or stipulated in the corporate executor's published schedule of fees in effect at such time or times such commissions become payable, including a stipulated minimum commission and asset base for calculating such commissions, a corporate executor shall be entitled to be compensated in accordance with such provisions, agreement or schedule, as the case may be, even though such provisions, agreement or schedule are not executed in accordance with the provisions required for wills and are not attested as required for the recording of deeds in this state.

Such commission shall be computed separately for receiving and for paying out sums of money, at one-half the statutory rates for receiving and at one-half the statutory rates for paying out sums of money.

[...]

In In re Barker, 8 Misc. 3d 1012(A), 801 N.Y.S.2d 778, 2005 N.Y. Misc. LEXIS 1397, 2005 NY Slip Op 51062(U) (N.Y. Sur. Ct. 2005), the State of New York Surrogate's Court of Madison County articulated the general rule that executor's commissions may not be denied unless the executor is derelict in the performance of their duties:

Executors are generally entitled to a commission as compensation for the services they render in their fiduciary capacity to the estate. SCPA 2307. And where, as here, the estate is of sufficient size, two executors are normally entitled to a full commission each. SCPA 2307 (5). The executor's commissions may not be denied "unless the fiduciary is 'derelict in the performance of his or her duties' (Matter of Smith, 91 A.D.2d 789, 791, 458 N.Y.S.2d 72 …), guilty of 'complete indifference' (Matter of Schaich, 55 A.D.2d 914, 915, 391 N.Y.S.2d 135 …, lv. den. 42 N.Y.2d 802, 397 N.Y.S.2d 1026 …) or 'otherwise acts improperly' (Matter of Campbell, 138 A.D.2d 827, 828, 525 N.Y.S.2d 745 …)." Matter of Farone, 162 A.D.2d 828, 829, 557 N.Y.S.2d 849 (3d Dept 1990).

In Matter of Smith, 91 A.D.2d 789, 458 N.Y.S.2d 72 (N.Y. App. Div. 1982), the Appellate Division of the Supreme Court of New York, Third Department, explained that the decision to deny commissions is in the discretion of the surrogate (at 791):

Lastly, we hold that the Surrogate was correct in denying commissions for the administratrix. While subdivision 1 of SCPA 2307 makes the award of commissions mandatory, it is well settled that when the fiduciary is derelict in the performance of his or her duties, the denial of commissions is within the discretion of the Surrogate (see Matter of Schaich, 55 A.D.2d 914, 915, 391 N.Y.S.2d 135, mot. for lv. to app. den. 42 N.Y.2d 802, 397 N.Y.S.2d 1026, 366 N.E.2d 292). A review of this record surfaces instances of neglect by the administratrix in the handling of the estate's affairs, including the failure to collect rents and the retention of substantial amounts of

Page 75

money in noninterest-bearing accounts. We, therefore, refrain from interfering with the exercise of the Surrogate's discretion.

N.Y. Comp. Codes R. & Regs. tit. 22 § 207.42 provides some guidance as to when commissions may be disallowed based on timeliness and offers a two- or three-year period for estate administration:

(a) Whenever the estate of a decedent has not been fully distributed or a final accounting filed with petition for settlement within two years from the date when the first permanent letters of administration or letters testamentary were issued where the gross taxable estate of such decedent does not require the filing of a Federal estate tax return, and within three years if a Federal estate tax return is required, the executor or administrator shall, at or before the end of the first complete month following the expiration of such time, file with the clerk of the court a statement in substantially the following form:

SURROGATE'S COURT Report pursuant to 22 NYCRR 207.42

............ COUNTY

Estate of ............, Deceased

File No. ............

Date of issuance of first permanent letters ............

Approximate amount of gross estate ............

Approximate amount that has been distributed to beneficiaries ............

Approximate amount remaining in fiduciary's hands at present ............

This estate has not yet been fully distributed for the following reason: (state briefly)

............

............

............

............

Date of this report ............

Fiduciary

Address: ____________

Phone: ____________

Attorney for above Fiduciary

Address: ____________

Phone: ____________

(b) The court shall thereupon take such steps as it deems appropriate to expedite the completion of the administration of the estate and the distribution of all assets.

(c) Failure to file such statement will be considered by the court on any application for commissions or legal fees, and may constitute a ground for disallowance of commissions or fees.

(d) The periods set forth in subdivision (a) of this section are not intended to set a standard time for completion of estate administration, but rather to fix a period after which inquiry may be made by the court.

(e) This section shall not limit the power of the court to direct an accounting at any time on its own initiative or on petition pursuant to SCPA 2205.

In Matter of Quattrocchi, 293 A.D.2d 481, 739 N.Y.S.2d 642 (N.Y. App. Div. 2002), the Appellate Division of the Supreme Court of New York, Second Department, affirmed the decision by the surrogate denying the executor commissions due to the executor's extensive delay in selling the properties comprising the estate (at 481-482):

In light of the appellant's extensive delay in selling the real properties which comprised the estate, the Surrogate properly denied her a fiduciary's commission (see Matter of Flynn, 205 AD2d 326; Matter of Shulsky, 34 AD2d 545; Matter of Simpson, 61 Misc 2d 307; Matter of Engvelt, NYLJ, May 27, 1969, at 18,

[293 A.D.2d 482]

col 4 [Sur Ct, Kings County 1969]; see also Matter of Weston, 91 NY 502; Matter of Janes, 223 AD2d 20). However, the Surrogate improperly awarded such a fee to the objectants, who did not render any fiduciary services to the estate (see Matter of Rutlege, 162 NY 31; Matter of James, 23 AD2d 529; Matter of Marshall, 15 AD2d 310).

The Surrogate's Court of the City of New York, Bronx County, in Matter of Rozycki, 144 Misc.2d 741, 545 N.Y.S.2d 921 (N.Y. Sur. Ct. 1989) made similar findings when the surrogate found that the executor unreasonably delayed in filing his accounting as more than five years had elapsed since administration of the estate commenced (at 742-743):

No fiduciary appointed by the court should expect that the transgression of having ignored an order of the court shall for all purposes be ignored. However, the issue sub judice may be decided without answering the question of whether a fiduciary has automatically forfeited the right to commissions whenever the account is not initially filed within the time ordered by the court and thereafter the fiduciary accounts only under the compulsion of being engulfed within the cloud of a contempt application. Here, as a result of the delay in serving the order upon petitioner, he was aware for approximately seven months prior to the service of the order upon him that he would have to account within 90 days once he was served with the order. Nevertheless, petitioner did not obey the order of the court and he failed to file his account until objectant had filed an application to hold him in contempt. Moreover, petitioner receives that portion of the net estate which is not to be paid to objectant as her elective share. Petitioner knew or should have known that the amount to which the objectant is entitled as her elective share could not be ascertained until his account was judicially settled. The bottom line is that as a result of petitioner's unreasonable delay in filing his account, the amount to which objectant is entitled as decedent's surviving spouse has neither been ascertained nor paid in the more than five years that have elapsed since petitioner commenced [144 Misc.2d 743] the administration of this estate. Under these circumstances, it would be adding insult to injury to conclude that objectant's elective share should be reduced as a result of commissions payable to petitioner. The court finds that petitioner has not administered the estate with the appropriate regard for objectant's interest in the estate and that this failure warrants the disallowance of commissions for the purpose of computing objectant's elective share [Matter of Smith, 91 A.D.2d 789, 458 N.Y.S.2d 72; Matter of Schaich, 55 A.D.2d 914, 391 N.Y.S.2d 135; Matter of Israel, 64

Page 923

Misc.2d 1035, 1043, 315 N.Y.S.2d 453; Matter of Bloomingdale, 172 Misc. 218, 14 N.Y.S.2d 845].

The Appellate Division of the Supreme Court of New York, Second Department, in In re Rubinstein, 72 A.D.3d 692, 901 N.Y.S.2d 63, 2010 N.Y. Slip Op. 2957 (N.Y. App. Div. 2010) found that the surrogate properly denied the executor commissions when the executor delayed filing a decree and supplemental account for over two years (at 693-694):

Contrary to the petitioner's contention, she was not entitled to trustee commissions pursuant to SCPA 2309 because the Trust terminated with the death of Gertrude on November 17, 1994. Likewise, the Surrogate properly exercised her discretion in disallowing the petitioner's request for commissions for administering

[901 N.Y.S.2d 65]

the estate subsequent to the issuance of the June [72 A.D.3d 694] 8, 2004, order. The June 8, 2004, order directed the petitioner to file a decree and supplemental account, which were delayed without justification until August 2006 and September 24, 2006, respectively (see Matter of Quattrocchi, 293 A.D.2d 481, 739 N.Y.S.2d 642; Matter of Scott, 234 A.D.2d 551, 552, 651 N.Y.S.2d 592; cf. Matter of Acker, 128 A.D.2d 867, 868, 513 N.Y.S.2d 786).

Authorities:
N.Y. Surr. Ct. Proc. Act § 2307
In re Barker, 8 Misc. 3d 1012(A), 801 N.Y.S.2d 778, 2005 N.Y. Misc. LEXIS 1397, 2005 NY Slip Op 51062(U) (N.Y. Sur. Ct. 2005)
Matter of Smith, 91 A.D.2d 789, 458 N.Y.S.2d 72 (N.Y. App. Div. 1982)
N.Y. Comp. Codes R. & Regs. tit. 22 § 207.42
Matter of Quattrocchi, 293 A.D.2d 481, 739 N.Y.S.2d 642 (N.Y. App. Div. 2002)
Matter of Rozycki, 144 Misc.2d 741, 545 N.Y.S.2d 921 (N.Y. Sur. Ct. 1989)
In re Rubinstein, 72 A.D.3d 692, 901 N.Y.S.2d 63, 2010 N.Y. Slip Op. 2957 (N.Y. App. Div. 2010)