Serving as a co-trustee in New York: how decisions are made

Two jointly, three or more by majority

EPTL 10-10.7 provides that, unless the instrument says otherwise, a power held by two fiduciaries is exercised by both of them jointly, or by the survivor, and a power held by three or more by a majority. The instrument may change either rule — some name a lead trustee, some require unanimity — so the instrument's own clause is the first thing co-trustees read together.

Where the rule is majority action, a fiduciary who dissents may still be asked to join the majority in executing what was decided. EPTL 10-10.7 provides that a fiduciary who joins after promptly expressing a dissent in writing is not liable for the majority's decision — though not excused from liability for failing to join in administering the trust or to prevent a breach.

When co-trustees cannot agree

SCPA 2102 provides a proceeding in which the court may direct fiduciaries who disagree about a matter of administration. Many co-trustees keep a written record of each decision and who agreed, which is the same record a court would ask for.

Separate property, separate names: every co-trustee holds the trust's property as fiduciary and transacts in the fiduciary's name, never mingled with any trustee's own (EPTL 11-1.6).

When one co-trustee stops serving

EPTL 11-1.1(b)(11) provides that, unless the instrument expressly provides otherwise, the survivor of two or more fiduciaries may continue to administer the trust without a successor being appointed, exercising all of the powers given to the original fiduciaries. And where the court appoints a trustee, the remaining trustees may act in the meantime (SCPA 1502).

A co-trustee leaves by resignation — accepted by the Supreme Court (EPTL 7-2.6(a)(1)) or permitted by the Surrogate's Court (SCPA 715) — or by removal for the grounds the statutes list (EPTL 7-2.6(a)(2); SCPA 711, 719).

Commissions with more than one trustee

SCPA 2309(6) sets how many commissions for paying out principal are allowed when there is more than one trustee, by the size of the trust, with apportionment by the services rendered beyond those numbers. Co-trustees who agree in writing among themselves to a different apportionment may do so within the section's limits.

The statutes, verbatim

• Exercise of powers by multiple fiduciaries; joint and several powers

  EPTL 10-10.7 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

• Fiduciaries' powers

  EPTL 11-1.1 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

• Appointment of trustee

  SCPA 1502 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

• Commissions of trustees, of donees of powers during minority and of donees of powers in trust under wills of persons dying, or lifetime trusts established, after August 31, 1956

  SCPA 2309 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

Common questions

Frequently asked questions

Do New York co-trustees have to agree on everything?

Two co-trustees act jointly; three or more act by majority — unless the instrument says otherwise (EPTL 10-10.7).

What can a co-trustee who disagrees do in New York?

Dissent promptly in writing: a fiduciary who joins the majority after a written dissent is not liable for the decision, though not excused for failing to join in administering the trust or to prevent a breach (EPTL 10-10.7). The court may also direct fiduciaries who disagree (SCPA 2102).

What happens when one co-trustee dies or resigns?

Unless the instrument expressly provides otherwise, the survivor may continue to administer the trust with all the original powers, without a successor being appointed (EPTL 11-1.1(b)(11)).

General information about New York law, not legal advice.