SCPA § 2311

Ex parte application for advance payment of commissions 1 · as in force on May 31, 2026

§ 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.

Official sourcehttps://www.nysenate.gov/legislation/laws/SCP/2311

In plain English

A fiduciary may ask the court that issued their letters for an advance on commissions without notice to anyone.

(1) At any time during administration, the petition must show that without the advance the fiduciary or estate will lose substantial federal or New York income tax advantages, or the fiduciary will suffer inconvenience or hardship, or all affected persons are under no legal disability and have consented by acknowledged instrument. No notice is required. ★
(2) If it entertains the application, the court may award a sum or make another just order.
(3) Any advance may not exceed the receiving commissions due, unless all affected persons are competent and consent by acknowledged instrument. ★
(4) The expense is borne by the fiduciary, the estate, or both, apportioned by the court according to the benefit derived.
(5) The order must require a bond equal to the payment, securing its return if disallowed, unless the fiduciary already has a bond, is a corporate fiduciary, all affected competent persons waive it by acknowledged instrument, or the will dispenses with it.

Marked in the text: penalties, time limits, sums of money. Editorial emphasis added by this edition; it does not appear in the statute as enacted.

In print

This provision appears in Volume 1 — The Surrogate's Court in Plain English; Volume 2 — The Surrogate's Court Procedure Act; Volume 5 — Your Career: Surrogate's Court in Plain English.