NY Est Pow & Trusts L § 11-2.1 (2021)
2021 New York Laws EPT - Estates, Powers and Trusts Article 11 - Fiduciary: Powers, Duties and Limitations; Actions by or Against in Representative or Individual Capacities Part 2 - Investments by Fiduciaries: Powers and Duties Relating Thereto 11-2.1 - Principal and Income

§ 11-2.1 Principal and income  (a) Duty of trustee as to receipts and expenditures.  (1)  A  trust  shall be administered with due regard to the respective interests of income  beneficiaries  and  remaindermen.  A  trust  is  so administered with respect to the allocation of receipts and expenditures if  a  receipt  is  credited  or  an  expense is charged to income or to principal or partly to each (A) in accordance  with  the  terms  of  the trust  instrument,  notwithstanding  any  contrary  provisions  in  this section; (B)  in  the  absence  of  any  contrary  terms  of  the  trust instrument, in accordance with the provisions of this section; or (C) if neither  of  the  preceding  rules  of  administration is applicable, in accordance with  what  is  reasonable  and  equitable  in  view  of  the interests  of  those  entitled  to  income  as well as those entitled to principal and in view of the manner in which men of  ordinary  prudence, discretion  and  judgment  would  act  in  the  management  of their own affairs.  (2) If the trust instrument gives the trustee discretion in  crediting a receipt or charging an expenditure to income or principal or partly to each,  no inference that the trustee has or has not improperly exercised such discretion arises from the  fact  that  the  trustee  has  made  an allocation contrary to the provisions of this section.  (b) What is income and what is principal; definitions.  (1)  Income is the return in money or property derived from the use of principal, including return received as:  (A) Rent from property, including sums received for  the  cancellation or renewal of a lease.  (B)  Interest  on money lent, including sums received as consideration for the privilege of prepayment  of  principal  except  as  provided  in paragraph (f) on bond premium and discount.  (C) Income earned during the administration of a decedent's estate, as provided in paragraph (d).  (D) Corporate distributions, as provided in paragraph (e).  (E) Accrued income on bonds or other obligations issued at a discount, as provided in paragraph (f).  (F) Receipts from principal used in business, as provided in paragraph (g).  (G)  Receipts  from  disposition  of natural resources, as provided in paragraphs (h) and (i).  (H) Receipts from other principal subject to depletion, as provided in paragraph (j).  (I) Receipts from disposition of underproductive property, as provided in paragraph (k).  (2) Principal is property, disposed of in trust, the income from which is payable to or to be accumulated for an  income  beneficiary  and  the title  to  which  is  ultimately  to  vest in the person entitled to the future estate. Principal includes:  (A) Consideration received  by  the  trustee  on  the  sale  or  other transfer  of  principal,  on  repayment  of  a  loan  or  as  a  refund, replacement or change in the form of principal.  (B) Proceeds of property taken on eminent domain proceedings.  (C) Proceeds of insurance upon property forming part of the  principal except  proceeds  of  insurance  upon  a  separate interest of an income beneficiary.  (D) Stock dividends, receipts on  liquidation  of  a  corporation  and other corporate distributions, as provided in paragraph (e).  (E)  Receipts with respect to bonds and other obligations, as provided in paragraph (f).  (F)  Royalties  and  other  receipts  from  disposition   of   natural resources, as provided in paragraphs (h) and (i).  (G) Receipts from other principal subject to depletion, as provided in paragraph (j).  (H)  Any  profit  resulting  from any change in the form of principal, except as provided in paragraph (k) on underproductive property.  (I) Receipts from disposition of underproductive property, as provided in paragraph (k).  (3) After determining income and  principal  in  accordance  with  the terms  of  the  trust  instrument  or  of this section the trustee shall charge to income or principal expenses and other charges as provided  in paragraph (l).  (c)  When  right  to  income  arises; apportionment of income or other receipt.  (1) An  income  beneficiary  is  entitled  to  income  from  the  date specified  in  the  trust  instrument or, if none is specified, from the date an asset becomes subject to the trust. In  the  case  of  an  asset which becomes subject to a trust by reason of a will, it becomes subject to  the  trust  as  of the date of the death of the testator even though there is an intervening  period  of  administration  of  the  testator's estate.  (2)  In  the  case  of a decedent's estate, a testamentary trust or an asset received under a will by a trustee: (A) receipts due but not  paid at  the date of death of the testator are principal; (B) receipts in the form  of  periodic  payments  (other  than  corporate  distributions  to stockholders   and   savings  bank  and  savings  and  loan  association dividends), such as rent, interest or annuities payable from any source, not due at the date of death  of  the  testator,  shall  be  treated  as accruing  from  day  to  day.    That portion of such a receipt accruing before the date of death is principal and the balance is income.  (3) In all other cases any receipt from an income producing  asset  is income even though the receipt was earned or accrued in whole or in part before the date when the asset became subject to the trust.  (4) On termination of an income interest, the income beneficiary whose interest  is  terminated  or  his  estate  is  entitled  to:  (A) income undistributed on the date of termination; (B) income due but not paid to the trustee on the date of  termination;  (C)  income  in  the  form  of periodic  payments  (other  than corporate distributions to stockholders and savings bank and savings and loan  association  dividends)  such  as rent, interest or annuities, not due on the date of termination, accrued from day to day.  (d) Income earned during administration of a decedent's estate.  (1) Unless the will provides otherwise and subject to subparagraph (2) hereof,  all  expenses  incurred  in connection with the settlement of a decedent's estate, including but not limited to debts, funeral expenses, estate  taxes,  interest  and   penalties   concerning   taxes,   family allowances,    fees   of   attorneys   and   commissions   of   personal representatives (other than commissions  on  estate  income)  and  court fees,  costs and other charges shall be charged against the principal of the estate.  (2) Unless the will provides otherwise, income from the  assets  of  a decedent's   estate   after   the  death  of  the  testator  and  before distribution,  including  income  from  property   used   to   discharge liabilities, shall be determined in accordance with the rules applicable to  a  trustee  under  this  section  and distributed as follows: (A) to specific beneficiaries the net income from the property disposed  of  to them  respectively; (B) to all other beneficiaries, except beneficiaries of pecuniary dispositions not in trust, the balance of the net income in  proportion to their respective interests in the undistributed assets  of the  estate  computed at times of distribution on the basis of inventory value; provided, however, (i) that the amount of  income  earned  during the  further  administration  of  the  estate from and after the date of payment of any estate or inheritance tax shall be  distributed  to  such beneficiaries  in  proportion  to  their  respective  interests  in  the undistributed assets of the estate after the making of such  payment  on the  basis of the fair market value of such assets immediately after the making of such payment, and (ii) any amount allowed as a  tax  deduction to  the  estate for income payable to a charitable organization shall be paid, without diminution  for  taxes,  to  the  charitable  organization entitled to receive such income. This subparagraph does not apply to any sums  made  payable in policies of insurance of any description or under any contract for an annuity, including a variable annuity.  (3) (A) The residuary beneficiaries are entitled to the rent from  the decedent's real property, not specifically disposed of, from the date of death,  in  proportion  to  their  respective  interests under the will, unless the fiduciary,  pursuant  to  a  power  to  distribute  in  kind, allocates  all or part of such property in whole or partial satisfaction of a pecuniary disposition in trust, in which event the  rent  from  the property  so allocated shall be distributed, as of the date of death, to the trustee of such disposition.  (B) This subparagraph applies to wills of decedents dying  before,  on or  after its effective date, provided, however, that it shall not be so applied as to require residuary beneficiaries to repay to the estate any distributions of income from real property,  not  specifically  disposed of,  which  were  actually  made  to  such  beneficiaries  prior to such effective date.  (4) Income and rent received by a trustee under subparagraphs  (2)  or (3) shall be treated as income of the trust.  (e) Distributions of corporations or associations.  (1)  Notwithstanding the provisions of this paragraph, a will, deed or other instrument which creates or declares  a  trust  may  provide  with respect to all matters covered by this section, and direct the manner of ascertaining income and principal and the apportionment thereof or grant discretion to the trustee or another person to do so, and such provision or direction, where otherwise not contrary to law, controls.  (2)  A  distribution by a corporation or association made to a trustee in the shares of the distributing corporation  or  association  held  in such trust, whether in the form of a stock split or a stock dividend, at the  rate  of  six per cent or less of the shares of such corporation or association upon which the distribution is made,  is  income.  Any  such distribution at a greater rate is principal.  (3)  For  the  purpose  of  determining  whether a will, deed or other instrument which creates  or  declares  a  trust  has  directed  that  a distribution  of  shares  described  in  subparagraph (2) is income in a manner other than that provided in subparagraph (2), the following rules apply unless different rules are provided in the  will,  deed  or  other instrument:  (A)  A  distribution  in the shares of the distributing corporation or association means a distribution in such shares, whether in the form  of a  stock  split or a stock dividend, at the rate of six per cent or less of the  shares  of  such  corporation  or  association  upon  which  the distribution is made.  (B)  A  distribution  in the shares of the distributing corporation or association, whether in the form of a stock split or a  stock  dividend, at the rate of six per cent or less of the shares of such corporation or  association upon which the distribution is made, is ordinary and regular and shall be deemed to be in lieu of a cash dividend.  (C)  If the will, deed or other instrument which creates or declares a trust grants to the trustee or another person discretion to allocate  to income  or principal or between income and principal any distribution in the  shares  of  the  distributing  corporation  or  association,   such discretion may be exercised with respect to any such distribution in the shares  of  the  distributing corporation or association, whether in the form of a  stock  split  or  a  stock  dividend,  and  no  inference  of imprudence  or  partiality shall arise from the fact that the trustee or other  person  has  made  an  allocation  contrary  to  a  provision  of subparagraph (2) or of this subparagraph.  (4)  (A) A right issued by the distributing corporation or association to subscribe to shares or other securities,  whether  in  the  stock  or other  securities of the distributing corporation or association or of a corporation or association other than the  distributing  corporation  or association,   accruing  to  shareholders  on  account  of  their  stock ownership, and the proceeds of any sale of such rights, are principal.  (B) A distribution by a corporation or association made to  a  trustee in  the  shares of the distributing corporation, but of a different type than the shares held  in  such  trust,  or  a  distribution  of  shares, securities  or  obligations  of  a corporation or association other than those of the distributing corporation or association (or the proceeds of such a distribution) shall be principal.  (5) When a corporation or association calls in shares of stock or when a corporation or association succeeds another by merger,  consolidation, reorganization  or other method of acquiring its assets, shares of stock issued for the shares so called in or shares of stock in the  succeeding corporation or association are principal.  (6)  When  a  corporation  or association is being wholly or partially liquidated, shares of stock and cash  or  other  assets  distributed  to shareholders   are   principal,   except  that  if  the  corporation  or association  indicates  that  some  part  of  such  distribution  is   a settlement  of  preferred  or  guaranteed  dividends,  that  part of the distribution settling dividends accruing  since  the  trustee  became  a shareholder is income. For the purposes of this paragraph, a corporation or  association  is  in  liquidation  if  the corporation or association indicates that the distribution is in total or partial  liquidation,  or if  the  corporation  or  association is making a distribution of assets other than cash pursuant to a court decree or final administrative order by a government agency  ordering  the  distribution  of  the  particular assets,  unless  the  distributing  corporation or association indicates that a distribution pursuant to such court or  administrative  order  is wholly or partly in lieu of an ordinary cash dividend, in which case the distribution is to that extent income.  (7)  Distributions made from ordinary income by a regulated investment company or by a trust qualifying and electing under federal  law  to  be taxed   as  a  real  estate  investment  trust  are  income.  All  other distributions made by such company  or  trust,  including  distributions from  capital  gains,  depreciation or depletion, whether in the form of cash or an option to take new shares or cash or an  option  to  purchase additional shares, are principal.  (8) If the distributing corporation or association gives a shareholder an  option to receive a distribution, whether in the form of cash or its own shares or cash or an option to purchase new shares, the distribution chosen is income.  (9) Except as provided in subparagraphs (2), (4), (5),  (6)  and  (7), all distributions of corporations or associations are income including:  (A) Cash dividends.  (B) Share distributions, as provided in subparagraphs (2) and (3).  (C)  Preferred  or  guaranteed  dividends, as provided in subparagraph (6).  (D) Ordinary income from a  regulated  investment  trust  or  a  trust qualifying  and  electing under federal law to be taxed as a real estate investment trust, as provided in subparagraph (7).  (E) An option, as provided in subparagraph (8).  (10) The trustee or other person may rely upon any  statement  of  the distributing  corporation  or association as to any fact, relevant under any provision of this paragraph, concerning the source or  character  of distributions.  (11) Where the shares of stock of a corporation or association of this state  or  of any other jurisdiction constitute part of an estate, trust or other fund, and the allocation of any other distribution  thereof  to principal  or  income,  or  between successive interests, depends on the date of accrual thereof, the date of accrual of any distribution on such shares shall be the date specified by  the  corporation  or  association declaring  such distribution as that on which the shareholders of record entitled to such distribution are to be determined, or, if there  be  no such  date  specified  by  the  corporation  or association, the date of declaration of the distribution. For the purposes of this paragraph, the "date of accrual" of a distribution means that date, on and after  which the  distribution  shall be treated in the same manner as if it had been declared and paid or distributed on such date.  (12) If a trustee or other person has  heretofore  received  or  shall hereafter  receive any shares of stock distributed by any corporation or association and is uncertain as to  whether  any  or  all  of  them  are allocable to income, the trustee or other person shall have with respect to  all  such shares and the proceeds thereof the same duties and powers (including powers of sale, investment and reinvestment)  as  though  all such  shares  constituted  part  of the principal of the trust fund. The trustee or other person shall be under no obligation to  retain  any  of such  shares  in kind even though it may subsequently be determined that some or all of them  were  allocable  to  income.  If  and  when  it  is determined  that any or all of such shares were allocable to income, the shares allocable to income shall  be  distributed  in  kind  to  income, except that, if prior to such determination, the trustee or other person had sold any of the new shares comprising the distribution or any of the original  shares  upon which the distribution was received, income shall be entitled to receive its ratable portion of the shares  remaining,  if any,  on  hand and an amount of cash equal to its ratable portion of the proceeds received by the trustee or other person upon the sale  of  such shares.  This subparagraph does not apply in any case in which a trustee or other person has  heretofore,  in  good  faith,  made  any  different allocation  of  the shares or the proceeds of any sale thereof, or both, as between income and principal and has made distribution in  accordance with such different allocation to income or to principal, or to both.  (13)  Subparagraphs  (1)  to  (6)  inclusive and (8) to (11) inclusive apply to any trust, whether created or declared before, on or after  the effective date hereof, except that subparagraphs (1) through (11) do not apply  to  any  distribution  described  in this paragraph which accrued prior to such effective date, and subparagraph  (7)  applies  to  trusts created  on  and  after  its  effective date and to the wills of persons dying on and after its effective date.  (f) Bond premium and discount.  (1) Bonds or other obligations for the payment of money are  principal at  their  inventory  value,  except as provided in subparagraph (2) for  discount bonds. No provision shall be  made  for  amortization  of  bond premiums  or  for  accumulation  of discount, except that in the case of testamentary trusts created by the wills of  persons  dying,  and  inter vivos  trusts created by instruments executed, prior to September first, nineteen hundred forty-two, premiums  may,  in  the  discretion  of  the trustee, be amortized if the bonds and other obligations for the payment of money were acquired prior to June first, nineteen hundred sixty-five.   The  proceeds  of  a sale, redemption or other disposition of bonds or other obligations are principal.  (2) The increment in value of a  bond  or  other  obligation  for  the payment of money bearing no stated interest but payable or redeemable at maturity  or  at  a  future time at an amount in excess of the amount in consideration of which it was issued is income. If  the  income  accrues pursuant   to   a   fixed   schedule  of  appreciation  such  income  is distributable to the beneficiary at the time the  increment  occurs  and the  trustee may transfer the amount thereof from principal to income on each such date. Whenever unrealized increment is distributed  as  income but  out  of principal the principal shall be reimbursed from the income when realized.  (g) Business operations.   If a trustee uses any part of the principal in the  continuance  of  a business  of  which  the  person who created or declared the trust was a sole proprietor or a partner, the net profits of the business,  computed in  accordance  with  generally  accepted  accounting  principles  for a comparable business, are income. If a loss  results  in  any  fiscal  or calendar year, the loss falls on principal and shall not be carried into any  other  fiscal  or  calendar  year  for  purposes of calculating net income.  (h) Disposition of natural resources.  (1) If any part of the  principal  consists  of  a  right  to  receive royalties,   overriding   or   limited   royalties,  working  interests, production payments, net profit interests or other interests in minerals or other natural resources in, on  or  under  land,  the  receipts  from taking  the  natural  resources  from  the  land  shall  be allocated as follows: (A) if received as rent on a lease or extension payments  on  a lease  the  receipts  are  income;  (B)  if  received  from a production payment, the receipts are  income  to  the  extent  of  any  factor  for interest  or  its equivalent provided in the governing instrument. There shall be allocated to principal the  fraction  of  the  balance  of  the receipts  which  the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor  for interest  or its equivalent. The receipts not allocated to principal are income; (C) if received as a royalty, overriding or limited royalty,  or as  a  bonus,  or  from a working interest or from any other interest in minerals or other natural resources, receipts not provided  for  in  the preceding  subparagraphs  shall  be  apportioned  on  a  yearly basis in accordance with this paragraph whether or not any natural  resource  was being  taken  from the land at the time the trust was established. There shall be added to principal as an allowance for depletion  such  portion of  the  gross receipts as shall be allowed as a deduction for depletion in computing taxable income for Federal income tax purposes. The balance of the gross receipts, after payment therefrom of all  expenses,  direct and indirect, is income.  (2)  If a trustee, on the effective date of this section, held an item of depletable property of a type specified in this paragraph,  he  shall allocate  receipts  from  the  property  in  the  manner used before the effective date of  this  section  but  as  to  all  depletable  property  thereafter  acquired  by  an  existing  or  new  trust,  the  method  of allocation provided herein shall be used.  (i) Sale of timber.   If  any part of the principal consists of land from which merchantable timber may be removed, the receipts from taking the timber from the land shall be allocated in accordance with subparagraph (1) (C) of  paragraph (a).  (j) Other property subject to depletion.   Except  as  provided  in  paragraphs  (h)  and (i), if any part of the principal  consists  of  property  subject   to   depletion,   including leaseholds,  patents,  copyrights,  royalty rights and rights to receive payments on a contract for deferred compensation, the receipts from such property shall be allocated in accordance with subparagraph (1)  (C)  of paragraph (a).  (k) Underproductive property.  (1)  Except  as otherwise provided in this paragraph (k), a portion of the net proceeds of a sale by a fiduciary  as  defined  in  subparagraph three of paragraph (A) of section 11-1.1 of any principal property of an estate  or  trust, other than securities listed on a national securities exchange or traded in over the counter, held for more than a year  which has  not  produced over the period held an average net income of one per cent per annum of its inventory value (including as income the value  of any  beneficial use of the property by any income beneficiary), shall be allocated to income as delayed income, as  provided  in  this  paragraph (k). The net proceeds of such sale shall be the gross proceeds received, including  the  value of any property other than cash received, less the expenses of sale, including tax, if any, incurred on the gain  realized, and less any carrying charges and expenses paid from the estate or trust while such property was held by the fiduciary and was underproductive.  (2)  The  sum  allocated to income as delayed income is the difference between the net proceeds of sale and the amount which, had  such  amount been  invested  at  simple interest at five per cent per annum while the property was underproductive, would have produced the amount of the  net proceeds.  Such  sum,  plus  any  carrying  charges and expenses charged against income while such property was held by such  fiduciary  and  the property was underproductive, less any income actually received from the property  during such period and less the value of any beneficial use of the property by any income beneficiary, is income  and  the  balance  is principal.  (3)  The  amount  allocated  to  income  as  delayed income under this paragraph (k) shall be allocated and paid to the beneficiaries (or their respective estates), if any,  who  were  entitled  under  the  governing instrument  to receive income from the estate or trust from time to time during the period the  property  was  held  by  the  fiduciary  and  was underproductive.  (4)  If,  or to the extent to which, any principal property subject to this paragraph (k) is  sold  or  disposed  of  by  conversion,  and  the proceeds  of  sale  or  conversion  consist  of property which cannot be readily apportioned, including, without limitation,  land  or  mortgages (for  example, real property acquired by or in lieu of foreclosure), the income beneficiary shall be entitled to the net income from any form  of property  or  obligation  received  pursuant to such sale or conversion, while the received  property  or  obligation  is  held,  and  when  such property  or  obligation  is  later  sold  or  otherwise  disposed of by conversion into easily apportionable property, no allocation  to  income as provided in this paragraph (k) shall be made.  (5)  This  paragraph (k) shall not apply if the terms of the governing instrument direct otherwise. A provision in a will or  trust  instrument  authorizing the fiduciary (A) to retain or to invest in property that is unproductive  or  underproductive of income (described in the instrument by the words "unproductive" or "underproductive"  or  words  of  similar import),  or to retain or to invest in property expressly without regard to whether it is productive of income, (B) to transfer  any  portion  of receipts  from income to principal on account of depreciation, depletion or amortization, or (C) to accumulate income and add  it  to  principal, shall  be  deemed  to  be  a direction that this paragraph (k) shall not apply.  (l) Charges against income and principal.  (1) The following charges shall be made against income:  (A)  ordinary expenses  incurred in connection with the administration, management and preservation of the trust property, including regularly recurring  taxes assessed  against  any  portion of the principal, water rates, insurance and bond premiums, interest paid by the trustee  and  ordinary  repairs; (B) any tax levied upon receipts defined as income under this section or the trust instrument and payable by the trustee.  (2)  If  the  court  shall find that any judicial proceeding primarily concerns income and that it is equitable to charge the expense  of  such proceeding,  or a part thereof, to income, the court may direct that all or a specified  part  of  the  expense  of  such  proceeding,  including attorneys' fees, shall be charged to income.  (3)  If  charges against income are of unusual amount, the trustee may by means of reserves or  other  reasonable  means  charge  them  over  a reasonable period of time and withhold from distribution sufficient sums to regularize distributions.  (4) The following charges shall be made against principal: (A) charges not provided for in subparagraphs (1) and (2), including court costs and attorneys'  fees,  the  cost  of  investing  and  reinvesting principal, payments on principal of an indebtedness (including a mortgage amortized by periodic payments of principal), expenses of preparation of  property for  sale, and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to protect or construe the trust  or the  property  or assure the title of any trust property; (B) repairs or expenses  incurred  in  making  a  capital  improvement  to   principal, including  special assessments; (C) any tax levied upon profits, gain or other receipts allocated to principal  notwithstanding  denomination  of the tax as an income tax by the taxing authority.  (5)   Regularly   recurring  charges  payable  from  income  shall  be apportioned to the same extent and in the same  manner  that  income  is apportioned under paragraph (c) hereof.  (6)  Notwithstanding  the  provisions of subparagraphs one and four of this paragraph, fees paid at least annually to  banks,  trust  companies and registered investment advisers for investment advisory and custodial services  shall  be  charged  one-third  against  income  and two-thirds against principal.  (m) Application of section.   Except as specifically provided in the trust instrument, the  will  or in  this  section,  this  section  shall apply to any receipt or expense received or incurred after its effective date by any trust or decedent's estate whether established before, on or after  the  effective  date  of this  section and whether the asset involved was acquired by the trustee before, on or after its effective date, provided that this section shall not apply to any receipt or expense received or incurred by any trust or decedent's estate after the effective date of article 11-A.  (n) Uniformity of interpretation.   This section shall be  so  construed  as  to  effectuate  its  general purpose to make uniform the law of those states which enact it.  (o) Definitions.   As used in this section:  (1)  "Income beneficiary" means any person to whom income is presently payable or for whom it is accumulated for distribution as income.  (2) "Remainderman" means any person entitled to  principal,  including income which has been accumulated and added to principal.  (3)   "Trustee"  means  an  original  trustee  and  any  successor  or substituted trustee.  (4) "Inventory value" means the cost  of  property  purchased  by  the trustee  and  the market value of other property at the time it was made subject to the trust.