If the allowance of such commissions is within the discretion of the court, the applicant therefor shall, upon every application for commissions on corpus, at least 20 days prior to the day on which the account is settled, file an affidavit stating in detail the nature of the services rendered in administering the estate and specifying the amount of the commissions requested.
Note: Source-R.R. 4:107-1; amended June 29, 1990 to be effective September 4, 1990; amended July 10, 1998 to be effective September 1, 1998. 4:88-2. Commission Payments Before Settlement
Whether or not annual commissions are taken pursuant to N.J.S.A. 3B:18-17, a fiduciary may apply to the court to which he or she is accountable for an ex parte order supported by appropriate affidavits for payment to the fiduciary on account of commissions on corpus for services to date. Such order shall not be binding on the beneficiaries, and the payment so ordered shall be subject to approval and allowance or to disallowance by the court upon the settlement of the fiduciary's account.
Note: Amended June 29, 1973 to be effective September 10, 1973; amended July 22, 1983 to be effective September 12, 1983; amended June 29, 1990 to be effective September 4, 1990. 4:88-3. Notice as to Apportionment of Commissions
The court shall not apportion commissions among cofiduciaries unless proof is made that five days notice of the application for apportionment has been given to those of them who do not appear.
Note: Source-R.R. 4:107-2. 4:88-4. Affidavit of Attorneys Services
On every application for attorneys fees, the attorney shall file with the court at least 20 days prior to the day on which the account is settled an affidavit stating, in addition to the information required by R. 4:42-9(b), whether any part of the requested fee is to be paid to or shared with an attorney or firm of attorneys of another state or jurisdiction and if so, the amount to be paid or the manner in which the fee is to be shared shall be set forth and shall be supported by an accompanying affidavit of the foreign attorney or attorneys stating in detail the nature of the services rendered. The allowance shall be payable to the New Jersey attorney, and shall state what part, if any, of said allowance is to be paid to or shared with the foreign attorney or attorneys.
Note: Source-R.R. 4:107-3; amended June 29, 1990 to be effective September 4, 1990.
3B:18-17. Taking annual amounts on account of corpus commissions Fiduciaries may annually, without court allowance, take sums as follows on account of corpus commissions: if there is but one fiduciary, the amount so taken may equal one-fifth of 1% of the value of the corpus and, if there are two or more fiduciaries, the amount so taken may equal the commissions which may be taken pursuant to this section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one.
L.1981, c. 405, s. 3B:18-17, eff. May 1, 1982.
3B:18-18. Value of assets for computing commissions taken annually In computing the amount of commissions which may be taken annually pursuant to N.J.S. 3B:18-17, the value of any item of corpus at the time when the item is received by the fiduciary, referred to in this section as the "presumptive value" of the item, may be used as the value of the item, or, at the option of the fiduciary, the value of the item at the end of the period for which the commissions are taken may be used.
L.1981, c. 405, s. 3B:18-18, eff. May 1, 1982.
3B:18-19. Failure to take commissions annually shall not constitute a waiver thereof The failure of a fiduciary to take commissions in any year as provided in N.J.S. 3B:18-17 shall not constitute a waiver of the right of the fiduciary to take in a subsequent year the commissions not taken for that year.
L.1981, c. 405, s. 3B:18-19, eff. May 1, 1982.
3B:18-20. Corpus commissions taken annually subject to review Commissions taken as provided in N.J.S. 3B:18-17 shall be subject to review on intermediate and final accountings, and to the extent that aggregate commissions so taken exceed the commissions allowable under N.J.S. 3B:18-14 and N.J.S. 3B:18-15, they may be disallowed.
L.1981, c. 405, s. 3B:18-20, eff. May 1, 1982.
3B:18-21. Burden of proving value In the event of a dispute as to the value of corpus on the settlement of the account of a fiduciary, the burden of proving that the value of any item of corpus differs from the presumptive value of the item shall be upon the fiduciary or other party claiming the difference.
L.1981, c. 405, s. 3B:18-21, eff. May 1, 1982.
3B:18-22. When rates for corpus commissions taken annually effective With respect to a fiduciary's annual corpus commissions, the rates set forth in this article shall apply for all yearly periods ending after February 29, 1980.
L.1981, c. 405, s. 3B:18-22, eff. May 1, 1982.
3B:18-23. "Fiduciary" defined As used in this article "fiduciary" means a trustee acting under a will, a non testamentary trustee as defined in N.J.S. 3B:17-9 or a guardian.
L. 1981, c. 405, s. 3B:18-23, eff. May 1, 1982. Amended by L. 1985, c. 434, s. 1, eff. Jan. 13, 1986.
3B:18-24. Income commissions Commissions in the amount of 6% may be taken without court allowance on all income received by the fiduciary. For the purposes of this section, income which is withheld from payment to the fiduciary pursuant to any law of this State, or of the United States, or any other state, country or sovereignty or of any political subdivision or governmental unit of any of the foregoing, for income tax or other tax purposes, shall be deemed to be income received by the fiduciary, and shall be subject to income commissions as if actually received by the fiduciary.
L.1981, c. 405, s. 3B:18-24, eff. May 1, 1982.
3B:18-25. Fiduciaries may take annual commissions on corpus 3B:18-25. a. Fiduciaries may annually, without court allowance, take commissions on corpus (including accumulated income which has been invested by the fiduciary) in the amount of $5.00 per thousand dollars of corpus value on the first $400,000.00 of value of corpus and $3.00 per thousand dollars of the corpus value in excess of $400,000.00.
b. Notwithstanding the provisions of subsection a. of this section, if the fiduciary is a banking institution, foreign bank or savings and loan association authorized to exercise fiduciary powers, the fiduciary shall be entitled to such commissions as may be reasonable.
c. Notwithstanding the provisions of subsection a. of this section, a fiduciary may take a minimum commission of $100.00 annually.
d. The value of the corpus for the purpose of this section shall be the "presumptive value" as defined in N.J.S. 3B:18-18 or, at the option of the fiduciary, the value at the end of the period.
e. Upon application of a person interested in the trust or guardianship, a court may review the reasonableness of the commissions of the fiduciary, provided, however, the fiduciary shall be entitled to receive at least the compensation provided for all fiduciaries as set forth in subsections a. and c. of this section.
Amended 1988, c.165; 1999, c.159, s.11.
3B:18-25.1. Taking annual amount on accounts of corpus commissions: two or more fiduciaries Taking annual amount on accounts of corpus commissions: two or more fiduciaries. If there are two or more fiduciaries, the amount of the annual commissions taken pursuant to N.J.S. 3B:18-25 may equal the commissions which may be taken pursuant to that section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one. No one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.
L. 1989, c. 7, s. 1.
3B:18-25.2. Powers of qualified bank; duties of agent 12. a. Notwithstanding any law to the contrary, a qualified bank acting in any capacity authorized pursuant to section 28 of P.L. 1948, c.67 (C. 17:9A-28) on behalf of a trust or estate may employ and pay reasonable compensation to any person, including attorneys, auditors, investment advisers or other agents, even if they are affiliated or associated with the qualified bank, to advise or assist the qualified bank in the performance of any of its administrative duties, whether or not discretionary, and to act without independent investigation upon their recommendation, so long as the qualified bank exercises care, skill, and caution in: selecting the agent; establishing the scope and terms of the agents duties consistent with the purpose and terms of the governing trust instrument; and periodically reviewing the agents actions in order to monitor the agents performance. A qualified bank that delegates investment functions to an investment adviser shall also comply with the requirements of sections 8 and 10 of P.L. 1997, c.26 (C. 3B:20-11.8 and 3B:20-11.10).
b. In performing any agency function, the agent shall owe to the qualified bank and the beneficiaries the same duties as the qualified bank and shall be held to the same fiduciary standards as the qualified bank.
c. In the absence of express contrary provisions in the trust instrument, a qualified bank which employs an agent other than an investment adviser or investment manager, may pay the agent from the fiduciary fund if the qualified bank reasonably believes in the exercise of its discretion that such an arrangement is in the best interests of all interested persons and will improve the efficiency of the administration of the fiduciary fund. In the absence of express contrary provisions in the trust instrument, a qualified bank which delegates investment and trust asset management functions to an investment adviser or an investment manager shall comply with the cost control and other requirements of sections 8 and 10 of P.L. 1997, c.26 (C. 3B:20-11.8 and 3B:20-11.10).
d. A qualified bank which substantially complies with the requirements of subsections a. and c. of this section shall not be liable to the beneficiaries or to the trust or estate for the decisions or actions of the agent, and shall not, solely by reason of the delegation, be deemed to engage in acts of self-dealing or a conflict of interest.
e. By accepting an appointment as agent from a qualified bank acting as a fiduciary of a trust or estate that is subject to the law of New Jersey, the agent submits to the jurisdiction of the courts of New Jersey, even if the agency agreement provides otherwise.
L.1999, c. 159,s.12.
3B:18-26. Failure to take commissions annually shall not constitute a waiver thereof The failure of a fiduciary to take commissions in any year shall not constitute a waiver by the fiduciary to take in a subsequent year the commissions not taken for that year.
L.1981, c. 405, s. 3B:18-26, eff. May 1, 1982.
3B:18-27. Commissions taken annually subject to review Commissions taken as provided in N.J.S. 3B:18-25 shall be subject to review on intermediate and final accountings, and to the extent that aggregate commissions so taken exceed the commissions allowable under this article, they may be disallowed.
L.1981, c. 405, s. 3B:18-27, eff. May 1, 1982.
3B:18-28. Corpus commissions on termination of trust, guardianship or upon distribution of assets In addition to the annual commissions on corpus, upon termination of the trust or guardianship, or upon distribution of assets from the trust or guardianship, the fiduciary may take a commission on corpus distributed, including accumulated income which has been invested by the fiduciary. The value of the corpus for the purpose of computing the commissions shall be the "presumptive value" or, at the option of the fiduciary, the value at the time of distribution, as defined in N.J.S. 3B:18-18. The amounts of the commissions to be taken are as follows:
a. If the distribution of corpus occurs within 5 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually taken by the fiduciary, plus an amount equal to 2% of the value of the corpus distributed;
b. If distribution of the corpus occurs between 5 and 10 years of the date when the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 1 1/2 % of the value of the corpus distributed;
c. If the distribution of corpus occurs more than 10 years after the date the corpus is received by the fiduciary, an amount equal to the annual commissions on corpus authorized pursuant to N.J.S. 3B:18-25, but not actually received by the fiduciary, plus an amount equal to 1% of the value of the corpus distributed; and
d. If there are two or more fiduciaries, their corpus commissions shall be the same as for a single fiduciary plus an additional amount of one-fifth of the commissions for each additional fiduciary.
L.1981, c. 405, s. 3B:18-28, eff. May 1, 1982.
3B:18-29. Corpus commissions; unusual or extraordinary services The court may, on an intermediate or the final settlement of fiduciaries accounts, allow corpus commissions in addition to those provided in this article, on a showing that unusual or extraordinary services have been rendered by the fiduciary for which he should receive additional compensation.
L.1981, c. 405, s. 3B:18-29, eff. May 1, 1982.
3B:18-30. Burden of proving value In the event of a dispute as to the value of corpus on the settlement of the account of a fiduciary, the burden of proving that the value of any item of corpus differs from the presumptive value of the item shall be upon the party claiming the difference.
L.1981, c. 405, s. 3B:18-30, eff. May 1, 1982.
3B:18-31. Authorization in testators will as to commissions exceeding legal rates No commissions in excess of those authorized in this article shall be paid to a fiduciary acting as a trustee under a will unless the testator, in his last will acknowledges that he is aware of the commissions specified in this article and expressly authorizes payment of commissions in excess thereof. The absence of an express authorization to pay excess commissions shall not preclude the court from allowing commissions as provided in N.J.S. 3B:18-29.
L.1981, c. 405, s. 3B:18-31, eff. May 1, 1982.
3B:18-32. When rates for corpus commissions taken annually effective With respect to fiduciaries annual corpus commissions, the rates set forth in this article shall apply for all annual periods ending after February 29, 1980.
L.1981, c. 405, s. 3B:18-32, eff. May 1, 1982.
3B:18-33. When rates of corpus commissions on termination of trusts or guardianship effective With respect to the computation of corpus commissions pursuant to N.J.S. 3B:18-28 as to all corpus held by a fiduciary on February 29, 1980, the commissions which may be taken shall be the greater of (i) the commission permitted by law effective prior to February 29, 1980, or (ii) the commission computed pursuant to N.J.S. 3B:18-28; provided that the "annual commissions authorized" to be take for yearly periods ending prior to February 29, 1980, shall be at the rate authorized by the applicable law in effect during that yearly period.
L.1981, c. 405, s. 3B:18-33, eff. May 1, 1982. Amended by L.1983, c. 394, s. 3, eff. Dec. 14, 1983.
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