Incapacity, Conservatorships & the Probate Court

Incapacity Conservatorships & the Probate CourtProbate misconceptions mistakes and myths blog2016Incapacity Conservatorships & the Probate Court Blog

Wills: Myths, Misconceptions & Mistakes

cropped-img_1399.jpgMost people realize having a will is a good idea. It provides for the transfer of your assets after you pass away to the people and institutions of your choice. As an attorney and  probate judge, I’ve seen and heard myths, misconceptions and mistakes in this area.

 

Some people believe it’s effective to simply write a note directing who will receive their assets after they die. This won’t work in Connecticut. Connecticut has strict requirements for how a will needs to be executed. If these requirements are not carefully followed, the note won’t be recognized as a valid will.

 

The same principle applies if someone wants to make changes to an existing will. Crossing out and writing in provisions to an existing will generally won’t be valid. If someone wants to change their will they either need to execute a new will or execute a codicil to the current will. The laws of will execution also apply to how a codicil must be executed in order to be valid.

 

Another misconception is that if someone dies without a will, all their assets will go to their surviving spouse. This is only true if the person who passed away had no children or surviving parents. Otherwise, the children or surviving parent will receive some portion of the decedent’s probate assets. If someone passes away survived by a spouse and children, the surviving spouse receives the first $100,000 and half of everything over $100,000. The children receive one half of everything over $100,000. However, if one or more of the children are not also children of the surviving spouse, the surviving spouse receives 50% of all the decedent’s assets and the other 50% are divided equally among the children. Stepchildren of the decedent are not recognized as heirs at law unless there are no surviving blood relatives of the decedent.

 

Photocopies of a will are not legally valid – only the original signed copy of the will may be admitted to probate. If the original cannot be located, additional proceedings in the probate court are necessary to allow admission of the photocopy.

 

All wills name an executor – someone or an institution (such as a bank or trust company) responsible to administer the estate. However, the executor named in the will does not actually become the executor unless they are willing and able to serve as executor and they are appointed by the probate court. Often people state they are the executor of a living relative’s estate, but that is not the case until their relative dies and they are appointed by the probate court.

 

Wills have no legal authority until admitted to the probate court. If someone becomes legally incapacitated, their will has no effect on the management of their assets while they are alive. Trusts, advance healthcare directives, powers of attorney, appointment of healthcare representatives and advance designation of conservators are legal tools used to plan for incapacity.

Prince: No Will, So What’s the Way?

The old adage, “where there’s a will there’s a way” might not have been intended to apply to wills people have for their estates.  However, wills do provide direction for who gets a person’s assets after they pass away.  But what happens when a person dies without a will?

The recent untimely death of music superstar Prince has drawn attention to what happens when someone dies without a will.  Here’s what’s been reported about Prince so far: he had no spouse; he had no surviving children or grandchildren; he had five siblings who are living, four of them are half siblings.

It’s likely that Prince’s assets at the time of his death were very significant, and right now it appears he had no will.

When someone dies without a will, state law determines who receives the deceased person’s assets and how much of the total estate goes to each person.

Let’s imagine that Prince was a Connecticut resident (which he in fact was not).  Based on the information above, his estate would be divided equally among his siblings – there would be no distinction between full and half siblings: all would share equally after expenses and claims are paid.

Persons who stand in line to inherit from a deceased person when there is no will are called heirs.  Heirs have legal rights.  Even if there is a will, heirs must receive notice of the initial probate hearing to give them the opportunity to attend the hearing and object to or to support the admission of the will to probate.

Wills usually name someone to be the executor of the estate.  The executor, only after appointment by the court,  is responsible for protecting the assets of the estate, administering the estate in probate court, and using the assets of the estate to pay administration expenses, creditors, and beneficiaries.

I sometimes hear people say that they are a living relative’s executor, but that is not an accurate statement. A person does not become an executor unless and until the person who has a will dies, the will is admitted to probate, the person named in the will as executor is willing and able to serve as executor, and  the probate court appoints the executor.

When someone dies without a will, or none of the executors named in the will are able to serve, an administrator will be appointed by the probate court.  The administrator’s role is similar to that of an executor. It’s common for the administrator to be a relative of the person who died.

Some of the speculation as to why Prince had no will involve common reasons why many people should have wills.  Having a family that includes minor children increases the need for someone to have a will.  Among other things, a will allows a parent of minor children to name a guardian for those children in the event both parents pass away.  Since Prince had no surviving children, that reason for having a will likely doesn’t apply in his case.

 

Because Prince had no spouse, tax planning for the benefit of a surviving spouse  does not apply.  However, it’s likely that if Prince’s assets were valued in excess of $5.4 million at the time of his death, his estate will have federal estate tax liability. Federal estate tax liability may be reduced by leaving gifts to charitable organizations in a will or trust.

Proper estate planning increases the likelihood that someone’s assets will go to the people and organizations of their choice. With no will, assets will go to heirs at law. Many people have a limited or even incorrect understanding of what this means for them and their assets after they pass away.  The objectives of estate planning go beyond  providing for a surviving spouse or children, and minimizing federal and state estate tax liability. Proper estate planning should be based on the goals of the person for whom the estate plan is created. Competent estate planning attorneys take the time to understand their client’s asset portfolio and their client’s values and objectives; explain options to the client, and create an effective estate plan customized for each client.

 

This blog is for informational purposes only and is not intended to be, nor should it be relied upon as legal advice.  Please consult with a competent attorney for advice as to your particular situation.

COPYRIGHT 2016 by DOMENICK N. CALABRESE. ALL RIGHTS RESERVED.  COPYING, DISSEMINATION OR USE WITHOUT THE PERMISSION OF THE AUTHOR IS STRICTLY PROHIBITED.

 

 

 

 

Welcome to the Connecticut Estate Planning Blog

Welcome to the Connecticut Estate Planning blog.  The information here will help you learn more about estate planning and help to answer questions and dispel common misconceptions and myths.  It’s directed to audiences who don’t have a legal background and  based on my experience as an estate planning attorney for over twenty years and as a Connecticut Probate Judge for 14 years.

Estate planning is a subject that few people consider.  However, failure to plan your estate and plan for potential legal incapacity may have drastic consequences.

Proper estate planning increases the chances that your assets will go to the people and organizations of your choice after you pass away.  It can ensure that your loved ones will be provided for.

The possibility of legal incapacity is more likely than most people realize.  Planning for legal incapacity can provide for the ongoing management of your affairs and healthcare decision making in the event you are unable to do so on your own.  Legal incapacity can strike suddenly and without warning.  This is a very stressful situation for families.  Having the legal tools in place should it occur goes a long way to minimizing the stress that families often deal with in these situations. Proper legal tools can also preclude the need for  conservatorship proceedings in the probate court.  Involuntary conservatorship proceedings can be stressful, time consuming and expensive.

However, there are unscrupulous purveyors of estate planning products who frequently claim or imply unrealistic or even false results.  They often prey on the fear of the unknown, the probate process and unfamiliarity with the law in order to pressure the unwary to spend thousands of dollars on questionable, and sometimes useless products.  This blog will help you understand what these tools are, and more importantly what they can and cannot accomplish to help you avoid being taken advantage of.

Some of the topics that will be explored in the next few weeks include tips on choosing the right attorney; estate planning myths, misconceptions and mistakes; wills; living trusts; pet trusts; incapacity, conservatorships and the probate court; powers of attorney; and Connecticut unclaimed property.

 

NOTICE: The information posted in this blog is for informational purposes only and is not intended to be, and should not be relied upon as legal advice.  Please consult with a qualified attorney for advice as to your specific situation.

COPYRIGHT 2016 DOMENICK N. CALABRESE.  UNAUTHORIZED DISSEMINATION, USE OR REPRODUCTION WITHOUT THE PERMISSION OF THE AUTHOR IS EXPRESSLY PROHIBITED.