LEGAL TIPS: Probate Court

This is the second in a series of Legal Tips by Atty. Stephen L. Mangan

Many of you have had some involvement with the local probate court for various reasons. In addition to being the place to go when filing a Last Will after someone dies, the probate court handles a variety of other matters. For instance, a probate judge can grant adoptions, appoint conservators of the person or estate, and handle matters concerning guardianships of minors.

The Probate Court system in Connecticut was revamped several years ago due to problems that go back more than a century. Connecticut has 169 towns, and there were almost as many probate courts to handle matters for each community. The system was beginning to fail financially, so there was a consolidation to achieve financial benefits and assure the smooth and uniform operation of the courts. There are now 42 courts serving the State of Connecticut. Along with other changes, the laws were changed so that all probate judges are now lawyers, as opposed to the old system which allowed “lay persons” who were unlicensed and did not necessarily have legal experience. All probate judges are elected, not appointed by the Governor.

The chief reason people find themselves in need of a Probate Court is to handle a decedent’s estate. A person who dies with or without a Last Will, owning property in their name alone, will need an estate opened in the district where they resided (or their domicile). The only way for the property of the estate to pass to heirs or beneficiaries under a Last Will is by probating the assets, filing an estate tax return, paying the last bills of the decedent, and then following the terms of the Will. There can be a “small estate”, one under $40,000.00 that can be probated without much paperwork and quickly. Another form of estate would be one that contains assets over $40,000.00 total value, and the decedent owned property with others jointly. As mentioned, estates are probated when the person does or does not have a Last Will. The lack of a Last Will means that the distribution of assets will follow the laws of Connecticut, which detail who takes the proceeds. This is known as intestacy.

A Last Will is generally prepared by an attorney. To execute a Last Will, a person must be mentally competent, aware of his or her assets, know who the natural objects of their bounty are, and have an understanding of how they want their estates distributed upon their death. The person creating the Last Will is known as the “testator” or “testatrix”. The first terms included in a Will include the payment of all debts, the funeral bill, taxes, and specific gifts or “bequests”. The Will then identifies the persons or entities who will receive the balance, or “residue” of the estate. Contrary to popular belief, a person can leave their estate to anyone or any entity. There are no laws that mandate a parent leave an estate to a child, or other living relative. However, there is a law in Connecticut that would protect a spouse of a deceased person who was not named in a Last Will. Generally, the living surviving spouse would have a right to make a claim against the estate in those cases.

A testator would nominate an executor to probate the estate after death. An executor is a fiduciary who is granted broad powers to act on behalf of the estate. The executor can handle banking, sale of real estate, wrap up business matters, and pay taxes and claims against the estate. Care should be given by a testator to name a trusted and competent person who is able to make the right decisions on behalf of the estate. An executor can also be an heir. Oftentimes, parents name one or more of their children as executors. Just make sure they get along!

A word about estates where there is no Last Will. The laws of intestacy dictate to whom property will pass. Generally, an individual’s property passes to their surviving spouse. If there is no surviving spouse, then the next to inherit would be living children or the living children of a deceased child. Conversely, the estate of an unmarried individual (without children) who dies would pass to surviving parents, and if none then to his or her surviving siblings, if any. All sorts of different situations are addressed by the laws involving intestacy.

One very interesting fact is the surprising way in which a Last Will can be revoked. The law in Connecticut states that a Will is revoked upon its destruction, such as tearing up, burning or other act clearly indicating a desire to revoke. However, did you know it’s possible for a married person to revoke a perfectly valid will by simply getting a divorce? So, if you are married, and you and your spouse create a valid estate plan, make sure to execute a new will if and when you ever divorce your spouse. If not, the two parties will be without a Will. That is called revocation “by operation of law”. It stands to reason that a divorced couple would not want to leave their estate to the party they have divorced.

Should you have a Will? Yes. No matter the value of your assets, a person should have a well thought out estate plan that would include a Last Will, power of attorney, advance directives, and in some cases, a trust. Wills can be simple or complex. A lawyer will assess your needs and advise you of what is appropriate for you. All assets need to be reviewed and a coordinated plan adopted that will best pass those assets to your heirs and beneficiaries. Thought is given to life insurance policies, jointly held assets, retirement accounts and other non-probate assets.

Finally, beware of the advertisements that say “Avoid Probate” by attending a seminar. They tend to be quite misleading, and what they are selling is not necessarily what you will need. Legal websites such as Legal Zoom attract people who try to create their own documents. The problem with this is that the generic document that is offered does not necessarily conform to Connecticut laws, and the advice contained on that site cannot possibly match the years of experience offered by a seasoned professional. If mistakes are made using Legal Zoom or some other product, it’s too late to fix once someone becomes incapacitated or dies.

People tend to put off the decision to make an estate plan. It is important to put your affairs in order before it’s too late.