NY SCPA 2311: Ex Parte Application for Advance Payment of Commissions

SCPA 2311 permits a fiduciary to seek advance payment of commissions by ex parte application in limited circumstances, including where delay would result in tax disadvantages, inconvenience or hardship, or where all interested parties under no legal disability have consented. Even without notice, the statute generally limits advance payments to receiving commissions unless all affected parties consent by acknowledged instrument.

Statutory Text

§ 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.

Practice Note

SCPA 2311 streamlines the procedure for obtaining an advance payment of commissions by permitting an ex parte application, but it does not eliminate the statutory distinction between receiving and paying commissions. Like SCPA 2310, the statute generally limits payments on account to receiving commissions and permits a greater payment only when all affected parties under no legal disability consent by acknowledged instrument. The recurring statutory emphasis on consent informs later disputes concerning a fiduciary's entitlement to paying commissions after distributions have been made.