Who Is the Trustee of a Trust in New York?

The trustee is the person or institution that holds legal title to the trust property and manages it for the benefit of the beneficiaries. In New York, the trustee is named in the trust instrument (or appointed by the Surrogate's Court when no qualified trustee is available), and must administer the trust as a fiduciary in strict accordance with the trust terms and the New York Estates, Powers and Trusts Law (EPTL).

This page answers, specifically for New York: who can serve as trustee, how a trustee is appointed and qualified, how a trustee is removed, and what a trustee is paid under New York's commission statute. For related topics, see our pages on naming a bank as trustee, breach of trust by a trustee, and a beneficiary's right to trust information.

The three roles in a New York trust

Every trust involves three roles, which one person can sometimes fill at the same time:

• Grantor (also called settlor or trustor): the person who creates the trust and transfers property into it.
• Trustee: the person or institution that holds and manages the trust property under EPTL 11-1.1 and the trust terms.
• Beneficiary: the person or persons for whose benefit the trust is administered.

In a typical New York revocable living trust, the grantor names themselves as trustee and primary beneficiary during their lifetime, then names a successor trustee to take over at death or incapacity. The trust becomes irrevocable when the grantor dies, and the successor trustee distributes or continues to manage the property as the trust directs.

A concrete New York example

Suppose a Manhattan resident creates a revocable living trust, names herself as trustee and lifetime beneficiary, and retitles her co-op apartment and a bank account into the name of the trust (for example, "Jane Doe, as Trustee of the Jane Doe Revocable Trust"). Property she does not retitle — say, a separately held Staten Island house — is not in the trust and would still pass through probate or by intestacy.

Her trust names her brother as successor trustee and her three children as successor beneficiaries. When she dies, the co-op and bank account pass to her brother as successor trustee, who must then administer them for the children according to the trust terms — for instance, distributing income until a child reaches a stated age, then distributing principal. The grantor can also name alternate (contingent) successor trustees in case the named successor has died, declined, or become incapacitated.

Who can serve as a trustee in New York?

New York law is relatively permissive about who may serve. A trustee may be:

• An individual — a family member, friend, or trusted advisor, who must be an adult and competent. A non-resident individual may serve as trustee of a New York trust, though practical and tax considerations often favor a New York resident.
• An attorney or accountant, who is bound by professional ethics rules that reduce the risk of self-dealing.
• A bank or trust company authorized to exercise fiduciary powers in New York. Corporate trustees offer continuity and professional administration but charge fees and often impose minimum trust sizes. See our page on using a bank as trustee.
• Co-trustees — for example, a family member paired with a bank or an attorney, often with a requirement that both agree before major distributions.

Note that certain people may be disqualified from serving as a fiduciary in New York under SCPA 707 — including infants, incompetents, felons, and those who do not understand English — when court appointment or qualification is required. For tax-sensitive irrevocable trusts, advisors frequently avoid naming the grantor or a beneficiary as trustee to prevent the trust assets from being pulled back into the grantor's taxable estate.

How is a trustee appointed and qualified?

Most trustees are simply named in the trust instrument and accept the office by signing or by beginning to act. For a testamentary trust (one created under a will), the trustee is appointed by the Surrogate's Court and must qualify by receiving letters of trusteeship, often after the will is probated. If a trust has no qualified trustee — because the named trustee has died, declined, or been removed and no successor is named — the Surrogate's Court may appoint a successor trustee under the EPTL and SCPA so the trust is never left without a fiduciary.

What duties does a New York trustee have?

A New York trustee is a fiduciary and owes the beneficiaries the highest duties known to law. These include the duties of loyalty, prudence, impartiality among beneficiaries, and to keep beneficiaries reasonably informed. EPTL 11-1.1 sets out the broad statutory powers a trustee has unless the trust limits them — including the power to invest, sell, lease, and manage property — and the Prudent Investor Act (EPTL 11-2.3) governs how trust assets must be invested.

A trustee who puts personal interest ahead of the beneficiaries — for example, by withdrawing trust funds for personal use — commits self-dealing and breach of fiduciary duty and can be held personally liable. Beneficiaries may compel an accounting and seek surcharge, removal, and other relief. For more, see breach of fiduciary duty and trustee accountings.

How is a trustee removed in New York?

A trustee may resign or be removed. Under EPTL 7-2.6, the Surrogate's Court or Supreme Court may remove a trustee who has violated or threatens to violate the trust, who has become incompetent or unfit, or who is otherwise incapable of executing the trust. SCPA 711 and 719 also provide grounds for suspending, modifying, or revoking letters and removing a fiduciary — for example, for waste, mismanagement, dishonesty, or for failing to account. A beneficiary or co-trustee typically initiates removal by petition in the Surrogate's Court. See our page on removing a fiduciary.

What is a trustee paid in New York? (SCPA 2309)

Unless the trust instrument provides otherwise, trustee compensation for lifetime trusts in New York is governed by SCPA 2309, which sets annual commissions based on the value and income of the trust. As a general framework, the statute provides for:

• An annual commission on income (commonly stated as a percentage of income collected), and
• An annual commission on principal calculated on a sliding scale tied to the value of the principal held, payable from income and principal as the statute directs.

The statute also addresses how commissions are shared when there are multiple trustees and allows additional commissions for paying out principal in certain circumstances. Because the figures and tiers are technical and periodically applied to specific facts, the trust instrument can — and often does — modify or fix trustee compensation. A corporate trustee will typically charge under its published fee schedule rather than the statutory rates. For details and how this differs from executor commissions, see our trustee compensation discussion and consult an attorney for your specific trust.

Trustees in irrevocable trusts

An irrevocable trust generally cannot be amended or revoked by the grantor, so the choice of trustee is especially important. New Yorkers use irrevocable trusts for asset protection, estate-tax planning, and Medicaid eligibility. Because the trust terms are fixed, trustees of irrevocable trusts are often given broad discretionary powers, and New York permits a properly authorized trustee to "decant" assets into a second trust with updated terms under EPTL 10-6.6. For Medicaid or creditor-protection planning, the grantor and the grantor's spouse usually should not serve as trustee, and the trustee should be someone the grantor trusts to honor the trust's purpose.

Frequently asked questions

Who is the trustee of a trust?

The trustee is the person or institution that holds legal title to trust property and manages it for the beneficiaries. In a New York revocable living trust, the grantor is often the initial trustee, with a named successor trustee taking over at death or incapacity.

Can the same person be grantor, trustee, and beneficiary in New York?

Yes — this is standard in a revocable living trust during the grantor's lifetime. It generally is not advisable in an irrevocable, tax-driven or Medicaid trust, where having the grantor serve as trustee can defeat the planning goals.

Can a bank be a trustee in New York?

Yes. A bank or trust company with fiduciary authority in New York can serve as trustee, offering professional administration for a fee. See bank as trustee.

How do I remove a trustee in New York?

A beneficiary or co-trustee can petition the Surrogate's Court for removal under EPTL 7-2.6 and SCPA 711/719 for cause such as mismanagement, self-dealing, or unfitness.

How much does a trustee get paid in New York?

Unless the trust says otherwise, lifetime trustee commissions are set by SCPA 2309, with an annual commission on income and a sliding-scale commission on principal. The trust instrument may set different compensation.

Speak with a New York trusts attorney

Choosing the right trustee — and drafting the powers, successor provisions, and compensation terms correctly under the EPTL and SCPA — is one of the most consequential decisions in a New York estate plan. If you are deciding who should serve as trustee, or you are a beneficiary concerned about how a trustee is acting, the Law Offices of Albert Goodwin can help. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

About the author: Albert Goodwin, Esq. is a New York estate, trust, and probate attorney admitted to practice in New York and Florida. His practice focuses on trusts and estates, including trust drafting, trustee disputes, and fiduciary litigation in the New York Surrogate's Courts.

This article is for general information about New York law and is not legal advice. Statutory commission rates and procedures should be confirmed for your specific trust with a licensed attorney. Last reviewed and updated for current New York law.