Trustee rights

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Latest post 01-16-2009 5:00 AM by Jonquil. 11 replies.
  • 01-11-2009 12:11 PM

    Question [=?] Trustee rights

    My father died in August, leaving his estate in a trust. My sister is trustee. She says that she is entitled to an executor's fee based on 5% of the first $100,000, 4% of the next $200,000, etc. Is this accurate or are trustee fees calculated differently?
  • 01-11-2009 12:42 PM In reply to

    re: Trustee rights

    Best I can do is refer you to the NY Surrogate Court Rules (SCP) Article 23 - COSTS, ALLOWANCES AND COMMISSIONS at:

    http://caselaw.lp.findlaw.com/nycodes/SLSCP0A23.html

    There's different commission schedules for different things.

    You'll have to find the one that adequately describes the trust.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-11-2009 10:08 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,519

    re: Trustee rights

    There may be some confusion as to executors fees and trustees fees--the fess you post seem more like executors fees--trustees fees for distribution seem a bit lower.

    If Sis wears both hats she may be entitled to BOTH sets of commissions!



  • 01-12-2009 2:47 AM In reply to

    Question [=?] re: Trustee rights

    What is the difference between trustee and executor?
  • 01-12-2009 7:57 AM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,519

    re: Trustee rights

    Lets say there is a will and then a trust, for example will sets up a trust or directs payment to n existing trust etc.

    Executor gets a fee to administer the terms of the will

    Trustee gets a fee to administer the terms of the trust



  • 01-12-2009 11:53 AM In reply to

    Question [=?] re: Trustee rights

    In this case the will was changed to a trust. My father put his whole estate in a trust. There was no will. The day of his funeral we called on the lawyer. The lawyer explained that his job was finished; we didn't really need a lawyer to divide the property. It was very clear. My sister, who had originally been executor of the will was listed as trustee. Her problem was that my father, in changing the will from three equal portions, now gave her 40%, and my brother and me 30%. He neglected to change the deed to the house, leaving it in three equal parts. My sister claims that she is entitled to 40% of the house, I say that our father intended to leave it as is. She responds that in such a case she is entitled to the legal fees as listed in the previous response. I say she is entitled to the payment of her expenses. We did the work "ourselves" in order to save legal fees, not pay them to one of us. By the way, she is not a lawyer.
    Is she entitled to thousands of dollars from my brother and me, or much less? Thanks for your help so far.
  • 01-12-2009 1:29 PM In reply to

    • nyctc7
    • Not Ranked
    • Joined on 12-31-2008
    • Posts 5

    re: Trustee rights

    As to the house, you need to review the "grantee" section of the deed. A person can only devise what their interest is in real property. If your father owned the house 100%, and then deeded the house to his three children, 1/3 each, with no mention of a trust, then the trust has nothing to do with it. It's what is stated on the deed.

    If there was no will, your sister is WRONG. Trustee fees Are NOT the same as executor's fees. Executor's fees are often set by law if the will is silent about them. Conversely, trustee's fees are often NOT set by law if the trust is silent about them. The standard would be that the fees are "reasonable." This would depend, among other things, on the complexity and length of time in administering the trust. It is not unheard of, perhaps it is even usual, for family members to waive fees they are legally entitiled to where the will or trust is a straightforward affair. For your sister to use the fees as a sort of weapon is a signal I think that you all need that lawyer who said his work was done. The three siblings need a sit-down with him or her. At the very least you could clear up the matter of the fees. The lawyer could give guidance on what "reasonable" fees would be in this case, and clear up the matter of the house. He or she might even suggest the waiver of fees if the trust is a fairly easy affair. I think such a meeting wouldn't necessarily cost a ton of money.

    Good Luck!
  • 01-13-2009 4:09 PM In reply to

    re: Trustee rights

    "My father put his whole estate in a trust. There was no will."

    You cannot logically (or legally) draw that conclusion.

    Unless he expressly revoked the will, there'd still be a will even if all the assets were in the trust.

    Even with all assets in the trust, many people write a "pour over" will in case anything gets missed.

    "He neglected to change the deed to the house, leaving it in three equal parts."

    I don't understand that.

    If the house was deeded to the trust, the trust would own the house 100% and the trust would specify how the house was to be divided or disposed of.

    If the house was not deeded to the trust, then the trust has nothing to do with the house and the house would be part of the estate and subject to the will or the laws of intestacy (if he expressly revoked the will). If he did not expressly revoke the will, then the terms of the will would still apply to the house.

    If the trust says 40, 30, 30 and the trust did not own the house, then that provision is likely unenforceable.

    "We did the work "ourselves" in order to save legal fees,"

    "We" are entitled to waive fees if "we" wants to. But that doesn't obligate anybody else to waive fees if they are statutorily entitled to them.

    And one does not have to be a lawyer to be entitled to executor and/or trustee fees.

    Seems like sister has a bunch of leverage here. Might consider negotiating something with her instead of getting lawyers involved at 300 per hour each.



    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 01-14-2009 8:48 AM In reply to

    re: Trustee rights

    I am a NY lawyer. First, the commisions are calculated differently for a trustee and an executor. The commissions are set by statute in NY. The commissions you recited are those of an executor. As previsoulsy said, if the house was not transfered to the trust, it passes by operation of law. I suggest that you go and see a lawyer by your self - since you all my not have the same interests and feelings. Good luck.

    Sharon M. Siegel, Esq.

    Siegel & Siegel, P.C.

    Phone: 212-721-5300

    email: sieglaw@optonline.net

    website: www.siegelandsiegel.com

  • 01-16-2009 5:00 AM In reply to

    Ok [+0+] re: Trustee rights

    Thank you for your answer. None of us lives anywhere near New York (I live in Israel) so we used the phone. The trust lawyer said that the house was outside the trust but my sister gets 1.05% of the sale price for her work. Regarding the division of the money and securities in the trust it's up to us to decide what is fair. I was well aware that her figures did not apply to this case, but wanted to be sure before asking our lawyer.
  • 01-16-2009 5:04 AM In reply to

    Note [#=#] re: Trustee rights

    I may not have been clear, but your answer was not accurate. She is not entitled to executor fees, and trustee fees are determined by the parties involved. The house was outside the trust because the deed had not been changed. Thus she had no grounds for demanding 40% of the house or for exorbitant executor fees instead.
  • 01-16-2009 5:07 AM In reply to

    Agree [=|=] re: Trustee rights

    Your answer, while bogged down in legal jargon, was very helpful. I ultimate got the answer from the trust lawyer, who is not involved in the house sale. You helped save my brother and me a bundle.
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