A trustee of an express trust shall be entitled to commissions and the allowance of his expenses and compensation and, if he be an attorney admitted to practice in this state, to the allowance of a sum on account of his compensation for legal services theretofore rendered to the trust, in the same manner and amount as that provided by sections twenty-one hundred eleven, twenty-three hundred eight and twenty-three hundred eleven of the surrogate’s court procedure act for testamentary trustees, if the trust was established on or before August thirty-first, nineteen hundred fifty-six, or as that provided by sections twenty-one hundred eleven, twenty-three hundred nine and twenty-three hundred eleven of the surrogate’s court procedure act for testamentary trustees, if the trust was established after August thirty-first, nineteen hundred fifty-six or as that provided for by sections twenty-one hundred eleven and twenty-three hundred eleven for testamentary trustees and twenty-three hundred twelve of the surrogate’s court procedure act except that the statements required thereunder to be furnished annually in order to retain certain annual commissions need be furnished during the settlor’s lifetime only to beneficiaries currently receiving income. The court shall make such determinations and allowances as the named sections require or authorize the surrogate to make, and the term “will” used in those sections shall be construed to mean the instrument creating the trust and the phrase “the court from which his letters were issued” shall be construed to mean the court having jurisdiction of the trust.
§ 8005.Commissions of trustees; advance payment of fees of an attorney- trustee
Article 80. Fees · Last amended 1984 · Last verified July 21, 2026
In one sentenceCPLR 8005 entitles the trustee of an express trust to commissions, expense reimbursement, and compensation computed the same way as a testamentary trustee under the Surrogate's Court Procedure Act, including an advance allowance for an attorney-trustee's past legal work for the trust.
Full Text of CPLR 8005
Plain-English Summary
Rather than write a separate fee schedule for lifetime trusts, CPLR 8005 borrows the one already built for testamentary trustees in the Surrogate's Court Procedure Act. A trustee of an express trust gets commissions, an allowance for expenses, and compensation figured the same way and in the same amount as those sections provide, with the exact cross-referenced provisions depending on when the trust was established relative to August 31, 1956. That date split exists because the underlying Surrogate's Court Procedure Act sections themselves changed at different points, and the statute routes each trust to the version of the rules that matches when it was created.
The section also gives an attorney who serves as trustee a practical benefit: if that attorney is admitted to practice in New York, the trustee can receive an advance allowance on account of compensation for legal services already performed for the trust, rather than waiting until a final accounting to be paid for that work.
Because an inter vivos trust has no surrogate presiding over it the way a decedent's estate does, the statute directs that whichever court has jurisdiction over the trust makes the determinations and allowances that the cross-referenced sections assign to a surrogate, and that the term 'will' in those borrowed sections is read to mean the instrument that created the trust.
Frequently Asked Questions
What does CPLR 8005 do?
It gives a trustee of an express trust the same commissions, expense reimbursement, and compensation that the Surrogate's Court Procedure Act provides for testamentary trustees, and lets an attorney-trustee draw an advance allowance for legal services already rendered to the trust.
Why does CPLR 8005 depend on when the trust was established?
Because it cross-references different sections of the Surrogate's Court Procedure Act depending on whether the trust was established on or before, or after, August thirty-first, nineteen hundred fifty-six, tracking changes made to those sections over time.
Can a trustee who is also an attorney get paid for legal work done for the trust?
Yes. If the trustee is an attorney admitted to practice in New York, CPLR 8005 allows an advance payment on account of compensation for legal services already rendered to the trust.
Who makes the compensation decisions for a lifetime trust under CPLR 8005?
The court that has jurisdiction over the trust makes the determinations and allowances that the Surrogate's Court Procedure Act assigns to a surrogate, since an inter vivos trust has no surrogate overseeing it directly.
Does CPLR 8005 create a separate fee schedule just for trustees of lifetime trusts?
No. It borrows the existing testamentary trustee commission structure from the Surrogate's Court Procedure Act rather than setting an independent schedule.
What does the word will mean when CPLR 8005 applies Surrogate's Court Procedure Act provisions to a trust?
It is construed to mean the instrument that created the trust, since a lifetime trust is not established by a will in the usual sense.
Advisory Committee Notes
This section is based upon CPA §§ 1548 and 1548-a. In order to avoid inadvertent differences between the fees of inter vivos trustees and those of testamentary trustees, the sections have been replaced by a reference to Surrogate’s Court Act §§ 285-a and 285-b, which are almost identical. Expenses, compensation and commissions are mentioned because the sections cover expenses paid out by the trustee, compensation for legal services if the trustee is an attorney and has performed such services, and enumerated commissions from principal. The provision that the court shall make the allowances and determinations required by the Surrogate’s Court Act to be made by the Surrogate is included to preclude any argument based upon the use of “surrogate” in that act. Similarly, the word “will” in the Surrogate’s Court Act should be construed for inter vivos trusts to mean any “instrument creating the trust,” the term used in the civil practice act.
Another minor difference between the two sections appears in subd (6)(c): the civil practice act section referred to a trust “established on or before” April 1, 1948, while the Surrogate’s Court Act refers to a trust “created prior to” that date. There is no apparent reason for this difference. The change effected by this section will thus be that an inter vivos trust established on the one day, April 1, 1948, will not be covered by the clause.
Subd (9)(c) of the two sections also differ in that the civil practice act referred to a trustee who “was not entitled to retain an annual principal commission,” while the Surrogate’s Court Act adds to this phrase “or was required to credit such annual principal commission against his commission for receiving principal.” It would seem that a trustee who was required to credit a commission should be treated in the same manner as one who was not entitled to the commission. The Surrogate’s Court Act phrasing, made applicable by this section, is thus preferable, for it is the more explicit.
Amendment History
Add, L 1962, ch 308, § 1; amd, L 1965, ch 542, § 1; L 1972, ch 172, § 1; L 1980, ch 185, § 1, eff June 2, 1980; L 1984, ch 936, § 10, eff Aug 6, 1984.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: trustee commission New Yorkexpress trust trustee feesattorney trustee compensation NYinter vivos trust fee schedule