Six Important Facts if You Find Yourself in the Probate Court

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.

Copyright © 2017 Domenick N. Calabrese. All rights reserved. No part of this article may be disseminated, reproduced or used without the express written consent of the author.

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

 

Fiduciaries Part 3: Removal

In my previous article in this series on fiduciaries, I examined situations where a fiduciary (trustee, executor, administrator, guardian of the estate or conservator of the estate) may be removed. This article continues the discussion on removal of fiduciaries.

Connecticut law includes one more situation that may result in the removal of a fiduciary: where all the beneficiaries request that the fiduciary be removed, the court agrees it’s in the best interest of the beneficiaries to remove the fiduciary, and there is a suitable successor fiduciary available.

It’s also important in that situation to determine that removal of the fiduciary isn’t contrary to an important term of the will or trust. Sometimes, the person who creates a trust chooses a specific trustee or group of trustees for their expertise, maturity, or reliability. Perhaps the trust beneficiaries lack financial sophistication, have creditor issues or lack maturity. The purpose of the trust for those beneficiaries might be to provide a reliable income stream for a set period of time, usually many years.

However, the beneficiaries may “want their money now” and are unwilling to wait for the trustee to make distributions in accordance with the trust. A television commercial from a few years ago comes to mind; in it, people are yelling from their windows and front porches “It’s my money and I want it now!” In that case, there could well be conflict between the beneficiaries, who may want the trustee to make distributions to them, and the trustee, who is unwilling to make distributions in excess of what the trust allows.

Another example of a situation where this might happen is when the fiduciary doesn’t communicate with the beneficiaries, file documents with the court in a timely way, or make required distributions to the beneficiaries.

In addition to state law, a trust document usually includes provisions for when a trustee may be removed. Trusts and wills can be very complex; a fiduciary only has the authority to perform the tasks and responsibilities that are in the trust or will.

Likewise, how a trust may be managed is usually in the trust document. Whenever there is a question about a trust, the trust document should be the first place to look for guidance.

It’s common for the trust to create a mechanism for removal of a trustee. Such provisions are usually highly customized, depending on the purpose of the trust, the preferences of the trust’s creator, and requirements of federal and state law.

Anyone who is a fiduciary should consult with a knowledgeable estate planning attorney for guidance. As a probate judge for 15 years, I’ve seen fiduciaries create problems because they didn’t understand their responsibilities and acted contrary to the provisions of the trust, will or law. Nearly all of them chose not to retain an attorney to guide them.

Being a fiduciary is a serious responsibility, and it’s all too easy for well-meaning people to create problems because they failed to retain competent legal counsel. Breach of fiduciary duty can have serious financial consequences: fiduciaries have personal liability. In some cases, there can be criminal liability for breach of fiduciary duty.

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.

Copyright © 2017 Domenick N. Calabrese. All rights reserved. No part of this article may be disseminated, reproduced or used without the express written consent of the author.

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

Living Wills

In a recent post, I discussed health care representatives as a tool that adults may use to plan for incapacity. Another tool that may be used along with an appointment of health care representative is the advance health care directive, commonly known as a Living Will.

Of course, as long as someone is able to understand their medical condition and can communicate with their health care providers, there is no need for a health care representative or Living Will. It’s when someone can’t actively take part in health care decision-making that a Living Will and health care representative may be useful.

Effective October 1, 2006, Connecticut law allows Living Wills to include direction on any aspect of a person’s own health care. Previously, Living Wills were limited to direction regarding life support only.

A Living Will is a written document. It directs a physician or other health care professional to provide or to not provide medical, surgical or other measures should a terminally ill patient become incapacitated.

A Living Will must be prepared and signed well before incapacity strikes. Once someone becomes incapacitated, it’s not possible for him or her to effectively execute a Living Will. Certain formalities must be observed or the Living Will won’t be valid. A “do it yourself” approach is not recommended. I’ve seen situations as a Probate Judge where a well-meaning friend or relative “drafted” a Living Will, which was then signed. Because the Living Will document was not correctly understood, the patient’s “wishes” were the exact opposite of what the Living Will indicated.

In Connecticut, physicians and licensed medical facilities are granted immunity from criminal and civil liability should they remove or withhold life saving or life-sustaining measures for incapacitated patients who are permanently unconscious. In order for this liability protection to apply, however, a number of requirements must be in place. One of them is that the physician or medical facility considers the patient’s wishes.   A Living Will is one way to document and communicate your wishes to others.

In addition to a Living Will, there are other ways you can communicate what measures you would and would not want should you become unconscious. Discuss your wishes with your healthcare provider, and have him or her make a note of it in your medical record. Discuss your wishes with family members before there is a crisis. This can go a long way toward ensuring your wishes are both known and followed, in addition to providing family members with some measure of peace of mind should they need to make such decisions. The best approach to making it more likely your wishes will be followed is to use all of these measures so everyone – your family and health care providers – are well aware of your wishes, and they are documented.

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.

Copyright © 2017 Domenick N. Calabrese. All rights reserved. No part of this article may be disseminated, reproduced or used without the express written consent of the author.

For more articles and presentations by Dom Calabrese, visit his website at http://www.domcalabreselaw.com

How To Choose the Right Attorney

One of the strengths of Connecticut Probate Courts is their informality and approachability. For most matters, parties may not need to retain an attorney to represent them. However, in certain cases, parties are at a disadvantage if they don’t have an attorney representing them.

When there is an application to appoint an administrator or executor for a decedent’s estate and the applicant does not have an attorney, I always have a hearing so I can discuss the case with the applicant. During those hearings, I recommend (but don’t require) that the applicant retain competent legal counsel. Frequently the applicant asks me to recommend an attorney.

As a Probate Judge, I don’t believe it’s ethical for me to “steer” parties to specific attorneys, so I never recommend a specific attorney. However, I also understand that choosing an attorney is something most people have little experience with, along with a great deal of trepidation.

In those situations, I suggest how to go about evaluating and choosing an attorney. My hope is that this empowers people to make informed decisions, minimizing the uncertainty and stress choosing an attorney sometimes causes.

This article outlines important factors in the process of evaluating attorneys, helping you make the best choice.

First and foremost, the attorney or attorneys you consider should be qualified. Qualification means two things: for matters in Connecticut Probate Courts, the attorney must be admitted to practice in Connecticut – a member of the Connecticut Bar in good standing.

In addition, an attorney should have significant experience in probate matters. Probate is a highly specialized area of the law; an attorney with little or no probate experience will not be as effective as a highly experienced probate attorney. I have occasionally dealt with attorneys who have no probate experience representing parties before me. Unless these inexperienced attorneys familiarize themselves with probate procedure, they are at a disadvantage in providing effective counsel for their clients.

Another important aspect to choosing an attorney is interpersonal chemistry. Before hiring an attorney, meet with them. Do you feel comfortable with the attorney? Are they able to explain things to you in a way that you understand? Are they approachable? If you retain them, who will perform most of the work on your case – the attorney you meet with? Another attorney? An inexperienced attorney right out of law school? A paralegal? A secretary? What is the firm’s policy for returning inquiries from clients? One of the most common reasons why clients file grievances against attorneys is failure of the attorney to return calls and communicate in a timely manner.

Clients have a right to know what’s going on and to be a part of the decision making process when it comes to substantive matters in their case. A prospective client should also know the attorney’s fees, rates and billing practices before committing to hiring the attorney.

Only with this information can you make the right choice.

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.

Copyright © 2017 Domenick N. Calabrese. All rights reserved. No part of this article may be disseminated, reproduced or used without the express written consent of the author.

For more articles and presentations by Dom Calabrese, visit his website at http://www.domcalabreselaw.com