2023 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 1 - Fiduciaries: Powers, Duties and Limitations › 11-1.1 - Fiduciaries' Powers

§ 11-1.1 Fiduciaries' powers
(a)  As  used  in  this  section, unless the context or subject matter
otherwise requires,  (1)  the  term  "estate"  means  the  estate  of  a
decedent;  (2)  the  term  "trust"  means any express trust of property,
created by a will, deed or other instrument, whereby  there  is  imposed
upon  a  trustee  the  duty  to administer property for the benefit of a
named or otherwise described income or principal beneficiary, or both. A
trust shall not include trusts for the benefit of  creditors,  resulting
or constructive trusts, business trusts where certificates of beneficial
interest  are  issued  to  the  beneficiary,  investment  trusts, voting
trusts, security instruments such  as  deeds  of  trust  and  mortgages,
trusts  created  by  the  judgment  or decree of a court, liquidation or
reorganization trusts, trusts for the sole purpose of paying  dividends,
interest,  interest  coupons,  salaries,  wages,  pensions  or  profits,
instruments wherein persons are mere  nominees  for  others,  or  trusts
created  in  deposits  in  any  banking  institution or savings and loan
institution; (3) the term "fiduciary" means  administrators,  executors,
preliminary    executors,    administrators    d.b.n.,    administrators
c.t.a.d.b.n.,  administrators  c.t.a.,  ancillary  executors,  ancillary
administrators,  ancillary  administrators c.t.a and trustees of express
trusts, including a corporate as well as  a  natural  person  acting  as
fiduciary,  and  a successor or substitute fiduciary, whether designated
in a trust instrument or otherwise.
(b) In the absence of contrary or limiting  provisions  in  the  court
order  or  decree  appointing  a  fiduciary, or in a subsequent order or
decree, or in the will, deed or other  instrument,  every  fiduciary  is
authorized:
(1) To accept additions to any estate or trust from sources other than
the estate of the decedent or the settlor of a trust.
(2)  To acquire the remaining undivided interest in the property of an
estate or trust in which the fiduciary, in his fiduciary capacity, holds
an undivided interest.
(3) To invest and reinvest property of the estate or trust  under  the
provisions  of  the  will,  deed  or  other  instrument  or as otherwise
provided by law.
(4) To effect and keep in force fire, rent, title, liability, casualty
or other insurance to protect the property of the estate or trust and to
protect the fiduciary.
(5) With respect to any property or any estate  therein  owned  by  an
estate  or  trust,  except  where such property or any estate therein is
specifically disposed of:
(A) To take possession of, collect the rents from and manage the same.
(B) To sell the same at public or private sale, and on such  terms  as
in  the  opinion  of  the  fiduciary  will be most advantageous to those
interested therein.
(C) With respect to fiduciaries other than a  trustee,  to  lease  the
same for a term not exceeding three years and, in the case of a trustee,
to  lease the same for a term not exceeding ten years although such term
extends beyond the duration of the trust and, in either of  such  cases,
including  the  right to explore for and remove mineral or other natural
resources, and in connection with mineral leases to enter  into  pooling
and unitization agreements.
(D) To mortgage the same.
(E)  Any  power  to take possession of, collect the rent from, manage,
sell, lease or mortgage, granted by  this  subparagraph  (5),  which  is
prohibited  by the terms of the will, deed or other instrument or by the
provisions of  this  subparagraph  (5),  nonetheless  exists,  upon  the

approval  of  the  surrogate,  where  such  power  is  necessary for the
purposes set forth in SCPA 1902.
(F)  A  fiduciary  acting  under a will may exercise all of the powers
granted by this subparagraph (5) notwithstanding the  effect  upon  such
will of the birth of a child after its execution or of any election by a
surviving spouse.
(6) To make ordinary repairs to the property of the estate or trust.
(7)  To  grant  options  for  the  sale  of  property for a period not
exceeding six months.
(8) With respect to any mortgage held by the estate or  trust  (A)  to
continue  the  same  upon and after maturity, with or without renewal or
extension, upon such terms as the  fiduciary  deems  advisable;  (B)  to
foreclose,  as  an  incident  to  collection  of  any  bond or note, any
mortgage securing such bond or  note,  and  to  purchase  the  mortgaged
property  or  acquire the property by deed from the mortgagor in lieu of
foreclosure.
(9) To employ any bank or trust company incorporated  in  this  state,
any  national  bank  located  in  this  state or any private banker duly
authorized by the superintendent of financial services of this state  to
engage  in  business here (who, as private banker, maintains a permanent
capital of not less than one million dollars) as custodian of any  stock
or other securities held as a fiduciary, and the cost thereof, except in
the  case of a corporate fiduciary, shall be a charge upon the estate or
trust. The records of such bank, trust company or private  banker  shall
at  all times show the ownership of such stock or other securities. Such
stock or other securities shall at all times be kept separate  from  the
assets  of such bank, trust company or private banker and may be kept by
such bank, trust company or private banker
(A) in a manner such that all certificates representing the securities
from time to time constituting the assets of a particular estate,  trust
or  other  fiduciary  account  are held separate from those of all other
estates, trusts or accounts; or
(B) in a manner such  that,  without  certification  as  to  ownership
attached,  certificates representing securities of the same class of the
same issuer and from time to  time  constituting  assets  of  particular
estates, trusts or other fiduciary accounts are held in bulk, including,
to   the   extent   feasible,  the  merging  of  certificates  of  small
denomination into  one  or  more  certificates  of  large  denomination,
provided  that  a  bank, trust company or private banker, when operating
under the method of safekeeping security certificates described in  this
subparagraph  (B), shall be subject to such rules and regulations as, in
the case of state chartered institutions, the  state  superintendent  of
financial  services  and,  in the case of national banking associations,
the comptroller of the currency may from time to time issue. Such  bank,
trust  company  or  private  banker  shall,  on demand by the fiduciary,
certify in writing the securities held by it for such estate,  trust  or
fiduciary account.
(10)  To  cause any stock or other securities (hereinafter referred to
as "securities") held by any bank  or  trust  company,  when  acting  as
fiduciary, whether alone or jointly with an individual, with the consent
of  the  individual  fiduciary, if any (who is hereby authorized to give
such consent), to be registered and held in the name  of  a  nominee  of
such   bank  or  trust  company  without  disclosure  of  the  fiduciary
relationship; and, in the case of an individual acting as fiduciary,  to
direct  any  bank  or  trust company incorporated under the laws of this
state, any national bank located in this state  or  any  private  banker
duly  authorized  by  the  superintendent  of financial services of this
state to engage in business here (who, as private  banker,  maintains  a

permanent  capital of not less than one million dollars) to register and
hold any securities deposited with such bank, trust company  or  private
banker  (hereinafter  referred to as "bank") in the name of a nominee of
such  bank.  The  bank  shall  not  redeliver  such  securities  to  the
individual fiduciary, who authorized their registration in the name of a
nominee of the bank, without first registering  the  securities  in  the
name  of  the  individual  fiduciary,  as  such.  But,  any sale of such
securities by the bank at the  direction  of  the  individual  fiduciary
shall  not be treated as a redelivery. The bank may make any disposition
of such securities which is authorized or directed by an order or decree
of the court having jurisdiction of the estate or trust. Any  such  bank
shall  be  absolutely  liable for any loss occasioned by the acts of its
nominee with respect to the securities so registered. The records of the
bank shall at all times show the ownership of any such securities and of
those held in bearer form. Such securities and those held in bearer form
shall at all times be kept separate from the assets of the bank and  may
be kept by such bank
(A) in a manner such that all certificates representing the securities
from  time to time constituting the assets of a particular estate, trust
or other fiduciary account are held separate from  those  of  all  other
estates, trusts or accounts; or
(B)  in  a  manner  such  that,  without certification as to ownership
attached, certificates representing securities of the same class of  the
same  issuer  and  from  time  to time constituting assets of particular
estates, trusts or other fiduciary accounts are held in bulk, including,
to  the  extent  feasible,  the  merging  of   certificates   of   small
denomination  into  one  or  more  certificates  of  large denomination,
provided that a bank, when operating under  the  method  of  safekeeping
security  certificates  described  in  this  subparagraph  (B), shall be
subject to such rules and regulations as, in the case of state chartered
institutions, the state superintendent of financial services and, in the
case of national banking associations, the comptroller of  the  currency
may from time to time issue. Such bank or trust company shall, on demand
by any party to an accounting by such bank or trust company as fiduciary
or  on  demand  by  the  attorney for such party, certify in writing the
securities held by such bank or trust company as such fiduciary.
(11) In the case of the  survivor  of  two  or  more  fiduciaries,  to
continue  to  administer the property of the estate or trust without the
appointment of a successor to the fiduciary who has ceased to act and to
exercise or perform all of the powers given to the original  fiduciaries
unless  contrary  to  the  express  provision of the will, deed or other
instrument.
(12) As successor or substitute fiduciary, to succeed to  all  of  the
powers, duties and discretion of the original fiduciary, with respect to
the estate or trust, as were given to the original fiduciary, unless the
exercise  of such powers, duties or discretion of the original fiduciary
are expressly prohibited by the will, deed or other  instrument  to  any
successor or substituted fiduciary.
(13)  To contest, compromise or otherwise settle any claim in favor of
the estate, trust or fiduciary or in favor of third persons and  against
the estate, trust or fiduciary.
(14) To vote in person or by proxy, discretionary or otherwise, shares
of stock or other securities held by him as fiduciary.
(15)  To  pay  calls,  assessments  and  any  other sums chargeable or
accruing against or on account of shares of stock, bonds, debentures  or
other  corporate  securities held by a fiduciary, whenever such payments
may be legally enforceable against the fiduciary or any property of  the

estate  or  trust  or  the fiduciary deems payment expedient and for the
best interests of the estate or trust.
(16)  To  sell  or  exercise  stock subscription or conversion rights,
participate in foreclosures, reorganizations, consolidations, mergers or
liquidations,  and  to  consent   to   corporate   sales,   leases   and
encumbrances. In the exercise of such powers the fiduciary is authorized
to  deposit  stocks,  bonds  or  other securities with any protective or
other similar committee under such terms and conditions  respecting  the
deposit thereof as the fiduciary may approve.
(17)  To  execute  and deliver agreements, assignments, bills of sale,
contracts, deeds, notes, receipts and any other instrument necessary  or
appropriate for the administration of the estate or trust.
(18)  In  the  case  of a trustee, to hold the property of two or more
trusts or parts of such trusts created by  the  same  instrument  as  an
undivided  whole  without  separation  as  between such trusts or parts,
provided that  such  separate  trusts  or  parts  shall  have  undivided
interests  and  provided  further  that  no such holding shall defer the
vesting of any estate in possession or otherwise.
(19) When a legacy, a distributive share, the proceeds of  any  action
brought  as  prescribed  by 5-4.1, or the proceeds of a settlement of an
action brought in behalf of an infant for personal injuries are  payable
to  an  infant,  incompetent, conservatee or person under disability and
the sum does not exceed ten thousand dollars, to make payment thereof to
the father or mother or to some competent adult  person  with  whom  the
infant,  incompetent,  conservatee or person under disability resides or
who has some interest in his welfare for the use  and  benefit  of  such
infant,  incompetent, conservatee or person under disability. If the sum
payable to a patient in an institution in the state department of mental
hygiene is not in excess  of  the  amount  which  the  director  of  the
institution  is  authorized to receive under section 29.23 of the mental
hygiene law, to make payment of such sum to such  director  for  use  as
provided in that section.
(20)  To  make distribution in cash, in kind valued at the fair market
value of the property at the date of distribution, or  partly  in  each,
without  being  required  to  make  pro  rata  distributions of specific
property.
(21) To join with the surviving spouse or the executor of his will  or
the  administrator  of his estate in the execution and filing of a joint
income tax return for any period prior to the death of  a  decedent  for
which  he  has  not filed a return or a gift tax return on gifts made by
the decedent's surviving spouse, and to consent to treat such  gifts  as
being  made  one-half  by  the  decedent,  for  any  period  prior  to a
decedent's death, and to pay such taxes thereon as are chargeable to the
decedent.
(22) In addition to those expenses specifically provided for  in  this
paragraph,   to   pay  all  other  reasonable  and  proper  expenses  of
administration from the property of the estate or trust,  including  the
reasonable  expense  of  obtaining  and  continuing  his  bond  and  any
reasonable counsel fees he may necessarily incur.
(c) The court having jurisdiction of the estate or trust may authorize
the fiduciary to exercise any other power which in the judgment  of  the
court is necessary for the proper administration of the estate or trust.
(d)  The  powers  set forth in this section shall apply to all estates
and trusts now in existence or which may hereafter come  into  existence
and are in addition to the powers granted by law or by the will, deed or
other instrument.