Who Is the Trustee of a Trust in New York, and How Do You Find Out?

The trustee is the person or institution that holds legal title to trust property and manages it for the beneficiaries. In New York, the trustee is the person named in the trust document, a successor named to replace that person, or someone the Surrogate's Court or Supreme Court appoints when the office is vacant. This page covers three practical questions: how to find out who the trustee is, how a successor trustee takes over, and what a New York trustee is paid under the commission statutes.

For drafting a trust or choosing a trustee in the first place, see our New York City trust attorney page. For a trustee who is mismanaging assets, see breach of trust.

Lifetime trusts and testamentary trusts: why the difference matters

How you identify the trustee, and what that trustee must do to start acting, depends on which kind of trust you are dealing with.

• Lifetime (inter vivos) trust: created by a signed trust agreement during the grantor's life. A revocable living trust is the most common example. The trustee takes office under the document itself. No court filing is needed to create the trust or to start serving.
• Testamentary trust: created by a will and funded only after the will is admitted to probate. The trustee must qualify in Surrogate's Court and receive letters of trusteeship before acting.

The distinction also controls compensation. SCPA 2308 sets commissions for testamentary trustees. SCPA 2309 sets commissions for trustees of lifetime trusts. The rate tables in the two sections are the same, but you cite the correct one when computing or challenging a commission.

How to find out who the trustee of a trust is in New York

New York has no public trust registry. A lifetime trust is a private contract and is not filed with any court or agency. Our pages on whether trusts are public record and whether trusts are registered explain this in more detail. In practice, these are the places to look:

1. The Surrogate's Court file, for a testamentary trust: once a will is offered for probate it becomes a court record. The will names the trustee, and the file shows whether letters of trusteeship were issued. You can search New York Surrogate's Court files online through the court system's WebSurrogate service or request the file from the clerk in the county where the decedent lived.
2. Real property records: if the trust owns a house or building, the deed usually names the owner as "[Name], as Trustee of the [Name] Trust." In the five boroughs, deeds for real property other than co-ops are searchable on ACRIS. Outside New York City, check the county clerk's land records.
3. Financial institutions: accounts held in trust are titled in the trustee's name. A bank will not release account details to a stranger, but a beneficiary who shows an interest can often learn who the account holder of record is.
4. The drafting attorney: the lawyer who prepared the grantor's estate plan often holds the signed original or knows who does.
5. Family and the grantor's papers: many trusts are found among the grantor's personal files, sometimes alongside a pour-over will.

If you are a beneficiary and the person holding the trust will not tell you who the trustee is or what the trust says, you can petition the Surrogate's Court. SCPA 2102 allows an interested party to compel a fiduciary to provide information about the trust and to deliver property. SCPA 2205 allows the court to compel a trustee to account. See a beneficiary's right to trust information and trust accountings.

Who is eligible to serve as trustee

For a lifetime trust, the grantor can name almost any competent adult or a bank with fiduciary powers. When a court must issue letters, as with a testamentary trustee or a court-appointed successor, SCPA 707 applies. Under that section, letters may not issue to:

• an infant (a person under 18);
• an incompetent;
• a non-domiciliary alien, subject to limited exceptions in the statute;
• a felon; or
• a person the court finds does not possess the qualifications required of a fiduciary because of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit to serve.

SCPA 707 does not disqualify a person because English is not that person's first language. "Want of understanding" refers to the capacity to perform the job, not to language. A non-domiciliary of New York who is a U.S. citizen or a domiciliary alien may serve, though the court may require a bond. Our page on fiduciaries with a felony conviction covers that ground in more detail. Read the statute text on the New York Senate website.

A trustee who is also a beneficiary faces a separate limit. Under EPTL 10-10.1, an individual trustee-beneficiary cannot use discretion to distribute principal or income to himself or herself, except under an ascertainable standard such as health, education, maintenance or support. This rule surprises many family trustees.

Taking over as successor trustee of a lifetime trust

When the grantor of a revocable trust dies or becomes incapacitated, the named successor trustee steps in under the terms of the document. No court appointment is required. The usual sequence looks like this:

1. Confirm the trigger: at death, obtain certified death certificates. For incapacity, follow the trust's definition, which often requires letters from one or two physicians.
2. Accept or decline: you accept by signing an acceptance or by starting to act. If you do not want the job, decline in writing before you take any action. Once you act, you have accepted, and leaving then requires a resignation under the trust terms or court approval under EPTL 7-2.6 or SCPA 715.
3. Get a new EIN: a revocable trust usually reports under the grantor's Social Security number during life. At death it becomes irrevocable and needs its own employer identification number from the IRS. File IRS Form 56 to give notice of the fiduciary relationship.
4. Show your authority to institutions: banks and brokerage firms will ask for the trust (or relevant excerpts), the death certificate, and a trustee affidavit or certification of trust on their own form. New York has not adopted the Uniform Trust Code, so there is no single statutory certification form. Each institution sets its own requirements.
5. Inventory and secure assets: list everything titled in the trust, change locks if needed, and maintain insurance on real property. For a co-op, contact the managing agent early, because a transfer out of the trust may need board approval.
6. Notify beneficiaries: keep them reasonably informed. Early, clear communication prevents many of the accounting petitions we see.
7. Pay expenses and taxes before distributing: the trust may owe the grantor's final income tax, a fiduciary return (federal Form 1041 and New York Form IT-205), and possibly New York estate tax. Assets in a revocable trust count toward the New York taxable estate.
8. Invest prudently: the Prudent Investor Act, EPTL 11-2.3, applies unless the trust says otherwise. It generally requires diversification within a reasonable time.
9. Keep records and account: track every receipt and payment. At the end, you will need either signed receipts and releases from the beneficiaries or a judicial accounting.

Taking over as trustee of a testamentary trust

A trustee named in a will cannot act until the will is probated and the Surrogate's Court issues letters of trusteeship under SCPA Article 15. The court may require a bond unless the will waives it, and the SCPA 707 eligibility rules apply. Probate and trusteeship often proceed together. Our page on letters testamentary covers the probate side. The executor then transfers the trust share to the trustee, who administers it under the will and reports to the court through accountings.

When no trustee is available

A trust does not fail for lack of a trustee. Under EPTL 7-2.3, when the sole surviving trustee of an express trust dies, resigns or is removed, the trust property does not pass to that trustee's heirs. Unless the grantor directed otherwise, it vests in the Supreme Court or Surrogate's Court, which can appoint a successor. In Surrogate's Court, a beneficiary or other interested party petitions for appointment of a successor or co-trustee under SCPA 1502.

These petitions come up most often in older trusts where every named trustee has died, or where the named successor is elderly or lives abroad and declines. The petition should identify all beneficiaries, propose a qualified successor, and address bond. Citation or waivers from the interested parties are typically required, and the court's filing fee is set by SCPA 2402.

In New York City, these petitions are filed with the Surrogate's Court for the relevant county: New York County at 31 Chambers Street in Manhattan, Kings County at 2 Johnson Street in Brooklyn, and Queens County at 88-11 Sutphin Boulevard in Jamaica. Each court has its own staff and procedures. Check the current e-filing rules and the court's checklist before filing.

Removing or replacing a trustee

A trustee who violates the trust, becomes unfit or cannot carry out the role can be removed by the court under EPTL 7-2.6. Where the court issued letters, SCPA 711 and SCPA 719 also allow suspension or revocation. Removal is covered in detail on our fiduciary removal page.

New York trustee commissions: SCPA 2308 and 2309

Unless the trust document sets different compensation, or the trustee waives it, a New York trustee is entitled to statutory commissions. SCPA 2308 governs testamentary trusts and SCPA 2309 governs lifetime trusts. Both use the same schedule. Read the text on the New York Senate website: SCPA 2308 and SCPA 2309.

Annual commission on principal

The annual commission is computed on the value of the trust principal:

• $10.00 per $1,000 on the first $400,000
• $4.50 per $1,000 on the next $600,000
• $2.50 per $1,000 on all amounts over $1,000,000

Although the commission is measured by principal, it is not all paid out of principal. Under New York's Principal and Income Act (EPTL Article 11-A), regular trustee compensation is generally charged one-half against income and one-half against principal, unless the trust directs otherwise. Older summaries describing a separate commission on income reflect law that no longer applies to most current trusts.

Paying-out commission

A trustee is also entitled to a commission of one percent of the principal paid out, for example on final distribution to the remainder beneficiaries.

Worked example: a $1,500,000 trust

• First $400,000 at $10.00 per $1,000: $4,000
• Next $600,000 at $4.50 per $1,000: $2,700
• Remaining $500,000 at $2.50 per $1,000: $1,250
• Annual commission for a sole trustee: $7,950

If the trustee later distributes the full $1,500,000, the paying-out commission is $15,000. Actual figures depend on the value of principal for the period and on any terms in the trust.

More than one trustee

When the principal is $400,000 or more, each trustee is entitled to the full commission a sole trustee would receive, up to three trustees. If there are more than three, the amount three trustees would receive is divided among all of them. When the principal is under $400,000, one full commission is divided among the trustees according to the services each performed. In the example above, two co-trustees could each take $7,950 a year, for a total annual cost of $15,900. That cost is worth weighing when a grantor names multiple family members.

Banks and trust companies

A corporate trustee may be able to charge under its published fee schedule instead of the statutory rates, depending on the trust terms and SCPA 2312. See naming a bank as trustee.

Common mistakes successor trustees make

• Using the grantor's Social Security number after death: the trust needs its own EIN once it becomes irrevocable.
• Distributing too early: a trustee who distributes before taxes and expenses are settled can be personally liable for the shortfall.
• Commingling: trust money must stay in trust accounts, never in the trustee's personal account, even briefly.
• Taking commissions without documentation: commissions should be calculated under the statute or the trust and disclosed in the accounting.
• Buying trust property: a trustee who purchases trust assets for himself or herself is self-dealing unless the trust or the court allows it. See a beneficiary buying property from a trust.
• Holding a concentrated position: leaving the trust in a single stock or a vacant house for years can violate the Prudent Investor Act.
• Closing without releases: without signed releases or a court-settled accounting, the trustee remains exposed to later claims.

Frequently asked questions

Does a successor trustee of a living trust need a court order to act?

No. The trust document is the source of authority. A court becomes involved only if someone disputes the appointment, no named successor is available, or a beneficiary seeks an accounting or removal.

Are trustee commissions taxable?

Yes. Commissions are taxable income to the trustee. A family trustee who is also a beneficiary sometimes waives commissions for that reason, since the money would otherwise reach them tax-free as a distribution.

Can the trust pay for the trustee's lawyer?

Generally yes, if the legal work benefits the trust administration. In a Surrogate's Court proceeding, the court can review and fix reasonable attorney fees under SCPA 2110.

Can I see the trust if I am a beneficiary?

A beneficiary is entitled to information needed to protect their interest. If the trustee refuses, a petition under SCPA 2102 or a demand for an accounting under SCPA 2205 is the usual route.

Talk to a New York trust attorney

If you have been named successor trustee, are trying to learn who controls a family member's trust, or need the court to appoint a trustee, the Law Offices of Albert Goodwin can help. We handle trust administration and Surrogate's Court proceedings in Manhattan, Brooklyn, Queens and the surrounding counties. Call 212-233-1233 or email [email protected].

Author: Albert Goodwin, Esq. is a trusts and estates attorney admitted to practice in New York and Florida. He represents trustees, executors and beneficiaries in trust administration and fiduciary litigation in the New York Surrogate's Courts.

Statutes cited: EPTL 7-2.3, 7-2.6, 10-10.1, 11-2.3 and Article 11-A; SCPA 707, 715, 1502, 2102, 2110, 2205, 2308, 2309, 2312 and 2402. Full text is available from the New York Senate (EPTL) and New York Senate (SCPA). This page is general information, not legal advice for a specific trust.