Prince – Connecticut Estate Planning & Probate

Introduction

While avoiding probate has been a national pastime for decades, in some circumstances, probate is inevitable. This article discusses six key facts for those who find themselves in the probate court – because of the loss of a loved one; because a family member is no longer able to care for themselves; you are an heir at law or the beneficiary under a will; or you are a fiduciary with important responsibilities, such as a trustee, guardian, agent under a power of attorney, administrator or executor.

This article is based on my 15 years as a sitting Connecticut Probate judge in one of the busiest Connecticut Probate Courts, 22 years experience as a practicing Connecticut estate planning and probate attorney, and, just as importantly, my personal experience in probate with my own family.

Informality of Connecticut Probate Courts

One strength of the Connecticut probate system is the relative informality of the probate court compared to other state and federal courts. Many (but not all) probate matters do not require representation by an attorney. The probate clerks will be happy to provide you with information, give you the forms you need, and to answer your questions.

The purpose of the probate court is to give interested parties a way to keep track of what’s going on in a case, to examine filings (such as accountings, inventories and motions) before a decision is made, and to be heard by the judge if you have questions or an objection to what’s before the court on your matter.

With the exception of confidential matters (those involving children, adults with intellectual disability, or matters that are specifically adjudicated to be confidential in part or their entirety), all probate proceedings are open to the public. However, only interested parties may participate in a hearing. So, while the public may attend any hearing on a non-confidential matter, only interested parties may ask questions or make their position known to the judge in the hearing.

All probate documents are open to public inspection with the exceptions above, tax filings, medical records, and records specifically adjudicated to be confidential.

The Role of the Probate Clerk

If you are involved in a probate case and are not represented by an attorney (referred to as a pro se party), it’s important to understand that information a probate clerk gives you (such as forms) is highly dependent on the facts of your case. Seemingly minor changes in the facts of a case can have dramatic consequences for probate proceedings. For that reason, it’s essential that the information given to the probate clerks is accurate and complete.

For example, if real property is owned by a decedent in survivorship with someone who has survived the decedent, the probate proceeding may be completely different than if the decedent owned the real property with another as tenants in common. Only by reviewing the deed recorded with the town clerk in the municipality where the property is located is it possible to know the correct title to real property.

Probate Without an Attorney

For pro se parties, it’s very important to slowly, carefully and completely fill out probate forms. This is not a process that should be done in haste. At least 50% of the forms received at the Region 22 Probate District are either incomplete or incorrect. This results in delays and potentially added cost that can be easily avoided by taking one’s time in filling out the forms and carefully checking them before submission to the court and the interested parties.

Another point to keep in mind is that the probate clerks are there to help you through the probate process. Listen carefully to what they tell you – I suggest writing it down – so that you can refer back to it when you return home. Arguing with the clerk will only add to the frustration and time the process involves.

While the clerks work hard and spend time with pro se parties to help them, there are two things they are not allowed to do: fill out forms and give legal advice. If there’s a question on a form you don’t understand, the clerk will be able to explain what is being asked. Clerks cannot tell you what answer to provide or fill the form out for you. Giving legal advice is something that attorneys and clerks in Connecticut housing courts are allowed to do; no one else – including probate clerks – are allowed to give legal advice.

Common examples of questions for legal advice include “When can I pay the bills (in a decedent’s estate)?”; “Can I distribute the estate now?”; “My 88 year old father is unable to make decisions for himself – what do you suggest I do?” Answers to these questions may only be answered by a Connecticut attorney who has extensive probate experience. I don’t suggest using attorneys who have minimal or no probate experience.

I’m always amazed at the number of people who come to the probate court following the advice of bank tellers, social workers, contractors, nurses, cashiers, family members, and neighbors. The advice of non-attorneys, no matter how well-intentioned, should be avoided. There are also a number of websites that claim to provide legal advice to the public for proceeding through probate without an attorney. While the information on some of those sites may be accurate, it’s no substitute for talking with the probate clerk and retaining a probate attorney.

Probate Matters Requiring an Attorney

Even though many matters in Connecticut probate courts do not require legal representation, there are a number that can rarely be done correctly without an attorney. Examples include full administration decedent’s estates (where an administrator or executor is appointed); applications for appointment of a conservator; change of name of a minor where the parents are not in agreement; when you are a fiduciary – an administrator or executor of a decedent’s estate; an agent under a power of attorney; a trustee; a conservator; or a guardian of the estate of a minor.

In my 15 years on the bench, I’ve seen people get themselves into difficult situations because they did not retain legal counsel. Sometimes these people made serious mistakes that created potential civil and criminal liability, particularly if they were a fiduciary. Those mistakes could have been avoided if a competent probate attorney had been retained.

In addition to the cases listed above, many people still choose to retain legal counsel for other matters in the court – affidavit estates where no fiduciary is appointed, tax purpose only decedent estates, and a variety of other probate matters.

The most common reason I hear as to why a party who really should retain an attorney does not is the perceived cost. For those unfamiliar with probate, there are misperceptions that attorney fees are much higher than they actually are. A role of the probate judge is to ensure that the fees charged by attorneys are reasonable. I have found that the vast majority of attorneys who practice in probate court charge reasonable fees. I have, on occasion, reduced or disallowed attorney’s fees. If you understand your attorney’s billing practices and fee structure before retaining him or her, there will be few surprises when your case is concluded and the attorney presents her or his final invoice. In Connecticut, the Rules of Professional Conduct require an attorney to have a fee agreement in writing with every new client. If you retain an attorney, pay careful attention to her or his fee structure in the representation agreement. If there’s something that you don’t understand, ask the attorney to clarify it.

Because many matters in Connecticut probate courts may be completed without the services of an attorney, some believe that all probate matters can be correctly completed without an attorney. Nothing could be further from the truth.

Probate is a very specialized area of the law. Only an attorney who is a member of the Connecticut bar is qualified to represent parties before Connecticut probate courts. I suggest only considering attorneys with extensive probate experience to represent you in a probate matter.

Often, those who come to the probate court do so because they are facing a difficult situation: the death of a loved one, or perhaps a relative or close friend is no longer able to take proper care of themselves because of a medical condition or trauma. In those cases, having an attorney advise you will go a long way toward providing peace of mind in an already stressful situation.

No Private Communication with the Judge

It’s also important to understand a fundamental concept of our judicial system – ex parte communication. Ex parte communication refers to a situation where a party to a case engages the judge in communication in the absence of the other parties. Such communication can leave the other party or parties at a disadvantage, or, at the very least, create the appearance of bias on the part of the judge.

Except in a very few, narrowly defined circumstances, ex parte communication is strictly prohibited. From a practical standpoint, this means that if you have a matter before the court, you cannot have a private conversation with the judge, or send the judge written (hardcopy or electronic) communication in the absence of the other parties. All oral communication with the judge may only take place during a scheduled hearing where all parties have been noticed. As for written communication, if all parties are not copied on it, a judge may not read it, unless it is read aloud during the course of a scheduled and properly noticed hearing.

Family Conflict in Probate

Another area that frequently manifests itself in probate proceedings is family conflict. Family conflict is ubiquitous – it happens in all or nearly all families. While it can be difficult to set aside these differences, it is absolutely essential to do so in probate matters. In the probate court, parties in conflict often end up prolonging the proceedings, running up attorney fees, and costing everyone – including themselves – more money. Most of that could be avoided if the parties simply decided to put aside their differences if only for the time it takes to complete the probate process.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. FOR ADVICE AS TO YOUR SPECIFIC SITUATION PLEASE CONSULT WITH A QUALIFIED ATTORNEY.

For more information on Connecticut estate planning and probate, please visit the Connecticut Estate Planning Blog at https://ConnecticutEstatePlanningSite.com

For more articles and presentations by Dom Calabrese, visit his website at https://DCalLaw.com

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.

Category: Prince

Six Important Facts if You Find Yourself in the Probate Court

Prince: No Will, So What’s the Way?