Developments in Connecticut Probate Law
| Pages | 10 |
| Publication year | 2021 |
69 CBJ 10. DEVELOPMENTS IN CONNECTICUT PROBATE LAW
During the 1993 and 1994 sessions, the Connecticut Legislature passed several public acts which resulted in additions or amendments to the General Statutes of interest to trusts and estates practitioners.
Public Act 93-261 brought the State's taxation of gifts in line with its federal counterpart(fn1) Specifically, this Act, effective July 1, 1993, calls for a credit for state gift tax paid against the state succession tax and requires the gross taxable estate to include the value of such gifts.(fn2) This differs from prior law where gifts taxable under state law were not subject to succession tax. Under this Act, gifts not subject to gilt, tax are not subject to succession tax either.(fn3) Also, with an October 1, 1993 effective date, this Act establishes the commencement date for calculating succession tax interest on settlements, awards, or judgments (received after the decedent's death) as six months after the estate receives funds, as opposed to the prior law, where interest began six months after the date of death.(fn4)
Public Act 94-5, amendln.1 CONN. GEN. STAT. § 12-647(a), makes gift tax returns, for gifts made during the calendar year of the donor's death, due on the same date as the federal gift tax return.(fn5) A penalty of the greater of 10% or fifty dollars, will be imposed for failure to pay any gift tax due within the specified time period and will bear interest at 1.25% per month or fraction thereof from the due date of such return.(fn6)
Public Act 93-399 allows trustees or fiduciaries who are compensated for services to an investment company to invest in the latter's securities provided the trustee or fiduciary discloses to the current income beneficiaries, by mailing separate notices to each one's last known address, that the fiduciary provides such investment services for compensation.(fn7)
Pursuant to Public Act 93-67, a fiduciary is no longer responsible for satisfying any encumbrance on real property held in joint tenancy with a right of survivorship which has passed to a joint tenant, unless, in a testate estate, the testator indicates otherwise.(fn8) "A general provision in a will for the payment of debts is not such an indication."(fn9) Also, a joint tenant is not personally liable for any debt of another joint tenant secured by an encumbrance on such property.(fn10)
Public Act 93-68 allows a fiduciary who is the sole. beneficiary of a decedent's estate (or multiple fiduciaries who are the only beneficiaries of the estate) to file a statement in lieu of other required probate accountings.(fn11) Such a statement must state that all debts, funeral expenses, taxes and expenses of administering the estate have been paid and that all specific bequests of tangible and real property have been distributed and receipt for their distribution obtained.(fn12) This Act also expands prior law, which allowed for statements in lieu of accounts except for estates with specific devises of real property. This Act allows the probate court, for cause, to refuse to accept such a statement and to require a full accounting.(fn13)
Public Act 93-184, an Act concerning definitions in conservatorships, removes the term "advanced age" as a reason for appointing a conservator.(fn14)
Public Act 94-24, amending CONN. GEN. STAT. § 45a-659,
requires probate courts to provide notice in accordance with § 45a-649 when it receives an application for a conservator over a nonresident's Connecticut estate.(fn15) If a conservator has been appointed in the incapable person's domicile state, the probate court can appoint such person as a Connecticut conservator without a hearing, provided a copy of the conservator's previous appointment is presented(fn16) Even if the out-of-state conservator does not apply for that position in Connecticut, the probate court may use a certified copy of the out-of-state appointment as evidence of incapacity.(fn17)
In addition, Public Act 94-24 revokes a court's power to sell a nonresident incapable person's property upon the application of a conservator.(fn18)
Public Act 93-262 provides for the consolidation of the Department of Income Maintenance, Department of Human Resources, and the Department on Aging into one agency called the Department of Social Services ("DSS").(fn19) Based on this consolidation, the commissioner of the DSS is allowed to accept an appointment for conservator (or temporary conservator) of the estate or person if no suitable conservator is found after due diligence and the health or welfare of a respondent is in jeopardy.(fn20)
Public Act 94-111, amending CONN. GEN. STAT. 45a-653, eliminates the need to file an attested copy of an application for a conservator's appointment with 1) the town clerk of any district where the alleged incapable resides or owns real estate and 2) any banking institution where the alleged incapable has funds.(fn21) Instead, this Act requires only that notice of the application be filed.(fn22) The notice must state that an application for a conservator's appointment is pending and must include the name of the alleged incapable person, the name of the applicant, the probate district in which the application is pending, and the ate of the application.(fn23) The applicant must also sign and
acknowledge the application.(fn24) However, the notice may not include the allegation of facts on which the application is based.(fn25)
Public Act 93-203 creates a springing power of attorney whereby a duly executed power of attorney may take effect upon the occurrence of a specified contingency, such as a certain date or the occurrence of an event.(fn26) The springing power of attorney must require the person named in the instrument to execute a written affidavit stating that the specified contingency has occurred.(fn27) The power will not be effective until such an affidavit is executed.(fn28)
This Act also grants jurisdiction over any disputes, concerning the meaning or application of this Act, to the probate court for the district in which the principal is domiciled or located at the time of the dispute.(fn29) If a conservator of the estate of the principal is appointed by the probate court, the springing power of attorney terminates and the person acting under the springing power must account to the conservator.(fn30)
Under Public Act 93-203, a statutory short form power of attorney may be used to create this springing power of attorney, provided the principal specifics that the power shall take effect only upon the occurrence of a specified contingency and that the agent designated by the principal executes a written affidavit that the contingency has indeed occurred.(fn31)
Public Act 93-407 simplifies the process for making health care instructions, appointments and designations. Effective October 1, 1993, persons 18 years of age or older may execute a single document to serve multiple functions.(fn33) One document will replace the need for a separate 1) living will; 2) appointment of a health care agent;
3) appointment of an attorney-in -fact for health care decisions; 4) designation of a conservator of the person for future incapacity; and 5) document an anatomical 91 ft. 34 This Act provides specific language for one form that serves all five functions, though separate documents may still be used.(fn35)
When separate documents are executed, a self-proving affidavit in connection with the execution of any of the individual documents is unnecessary. But, when the combined form is used, the Act requires a self-proving affidavit.(fn36) However, this Act eliminates the need for a notary public or commissioner of the superior court to take the acknowledgment of the person executing the document on the combined form.
Also, if the combined form is used, the same person or persons must be designated as both the health care agent and attorney-in -fact for health care decisions and this person can consent to any medical treatment designed solely to maintain physical comfort. An attorney-in-fact under the statutory short form power of attorney is expressly unable to make this decision.(fn37)
Public Act 93-407 specifies that any person who receives a duly-executed cog or facsimile of the combined document may rely on it unless he or she has actual notice of its revocation.(fn38)
This Act also allows Connecticut residents to designate, in a duly acknowledged writing, someone other than their next of kin to have custody an control of their remains.(fn39) Such a designation will be effective in instances where there is no surviving spouse or the decedent and the surviving spouse lived apart at the decedent's death.(fn40)
Public Act 94-207 permits a parent or guardian, as principal, to designate a standby guardian of a minor to take effect upon the occurrence of a specified contingency, including, but not limited to, the mental incapacity,
physical debilitation or death of the principal, provided a written affidavit has been executed indicating that such a contingency has occurred.(fn41) The designation of a standby guardian must be in writing and signed and dated by the principal with at least two witnesses.(fn42) The principal may revoke a designation of a standby guardian at any time by written revocation and notification-of the revocation to the standby guardian.(fn43)
When a designation of a standby guardian becomes effective due to the occurrence of the specified contingency, the standby guardian possesses the authority and obligations of a guardian for ninety days, or as long as the specified...
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