COUNTY LAW, §§201, 215(3); SURROGATE'S COURT PROCEDURE ACT,
§1219: A county chief fiscal officer is entitled to retain
fees and commissions received in his or her capacity as
administrator of estates. The chief fiscal officer, however,
may voluntarily remit to the county moneys received in that
capacity. If the chief fiscal officer waives his or her right
to fees and commissions, however, the fees and commissions
belong to the estate rather than to the county or any other
You ask whether the chief fiscal officer of a county who serves as administrator of an estate pursuant to section 1219 of the Surrogate's Court Procedure Act [SCPA] may retain the commissions and fees he or she receives in the capacity as administrator (see SCPA, §2307). If those commissions and fees may be retained, you also ask whether the commissioner may voluntarily remit the same to the county.
County Law, §201 provides, in pertinent part, as follows:
Thus, section 201 generally prohibits salaried county officers from retaining fees and commissions paid to them in the performance of their official duties (see, e.g., People ex rel. Conine v Steuben County, 183 NY 114, applying the prohibition to a county treasurer).
Section 1219 of the SCPA, however, provides that "[a] chief fiscal officer of a county appointed administrator of an estate ... shall be allowed the same commissions as an administrator which commissions shall be in addition to the salary and fees now allowed by law to such chief fiscal officer". This Office has previously expressed the opinion that fees and commissions under section 1219 are paid to a county chief fiscal officer in his or her capacity as administrator of estates and not as chief fiscal officer. Therefore, we have concluded that, notwithstanding County Law, §201, a county chief fiscal officer may retain the fees and commissions paid to him or to her as administrator (1967 Opns St Comp No. 67-891, unreported; 6 Opns St Comp, 1950, p 216). We based our opinion, in part, on the case of County of Nassau v Bennett, 35 Misc 2d 586, 231 NYS2d 766, app dsmd 12 NY2d 834, 236 NYS2d 610, in which the court, without mentioning County Law, §201, held that fees earned as a result of the administration of estates by a county treasurer could be retained by him in addition to his salary as treasurer.
The conclusion reached in our prior opinions was confirmed in a subsequent judicial decision, Estate of Peetz, 83 Misc 2d 890, 374 NYS2d 247. The court in Peetz, favorably citing 6 Opns St Comp, 1950, supra and the County of Nassau case, supra, held that a county chief fiscal officer is entitled to retain fees or commissions received in his or her capacity as administrator of estates, notwithstanding County Law, §201. Therefore, in light of the Peetz case, supra, we hereby reaffirm our prior opinions regarding the retention of commissions by a county chief fiscal officer when acting as administrator of estates.
The courts have held that an administrator or any other person having fiduciary duties with respect to an estate may waive his or her right to fees or commissions (see, e.g., Cook v Stockwell, 206 NY 481; see also, Finn v City of New York, 282 NY 153; McCarthy v McGoldrick, 266 NY 199; and Emmitt v Mayor, etc., of New York, 128 NY 117). A waiver, however, "would redound to the benefit of the estate and render such commission payable to the estate" (in re Hammersdorf's Will, 125 NYS2d 276, at 277, n.o.r.; see also, in re Fewer's Estate, 177 Misc 788, 31 NYS2d 810; Matter of Miller, 99 AD2d 780, 471 NYS2d 877).
Although a waiver of the commissions otherwise due under SCPA, §1219 would not run to the benefit of the county, a county chief fiscal officer may voluntarily remit to the county fees and commissions which he or she receives as administrator of estates under SCPA, §1219, or assign his or her right to receive payment to the county (see 1978 Opns St Comp No. 78-716, unreported; General Obligations Law, §5-1107; Estate of Mary Ellen Fraad, NYLJ, March 29, 1990, p. 30, col. 5; County Law, §215). Alternatively, the chief fiscal officer may request that the court order that the fees be paid directly to the county. We express no opinion, however, on whether the treatment of the payment of these fees to the county for purposes of federal and state income taxes, liability for social security contributions, and computation of final average salary for purposes of New York State and Local Employees Retirement Systems would differ depending on the approach taken by the chief fiscal officer.
June 5, 1991