Connecticut Probate Law 1995
| Pages | 137 |
| Publication year | 2021 |
70 CBJ 137. Connecticut Probate Law 1995
A. Succession and Gift Taxes
The most publicized piece of legislation that the Connecticut lawmakers passed in the trusts and estates area was the repeal of the succession tax. (fn1) The tax will not be entirely phased out for ten years; however, there are quick, dramatic reductions in the tax for lineal ascendants and descendants, with the tax for those beneficiaries being phased out by the end of 2000. (fn2)
Many members of the bar and the legislature worked diligently for a number of years to achieve the repeal of the succession tax, and the relative ease with which it passed in 1995 was surprising. The repeal of the succession tax to a large extent eliminates an often-cited reason for Connecticut residents to change their residency to another state, usually Florida. Once the Connecticut succession tax is completely phased out, the death taxes in Connecticut and Florida Will be very similar. A possible difference between the two is that, in Connecticut, it is unclear whether credit is given against the state death tax for death taxes paid to other states; in Florida, on the other hand, there is a credit given for death taxes paid to other states. Also, Connecticut's gift tax was not repealed in connection with the repeal of the succession tax; Florida does not have a gift tax.
The legislature made several technical changes to the Connecticut gift tax laws in 1995, primarily relating to filing dead
lines. (fn3) Changes were also made to the circumstances in which property may be characterized and valued as "farm land." (fn4)
Public Act 95-26 reduced the uniform interest rates for underpaid state taxes and tax refunds due to overpayment. Under the act, underpaid taxes are charged interest at 1% per month and overpaid taxes will earn 2/3% interest per month, both commencing six months after payment of the taxes or death of transferor, whichever is later. (fn5)
B. Guardians and Conservators
The 1995 General Assembly replaced the Connecticut 'Uniform Gift to Minors Act' with the Uniform Transfers to Minors Act. (fn7) The new act makes expansive changes to the old scheme, including clarifying procedures concerning the designation and resignation of custodians, granting broader powers to them, permitting successor custodians to require accounts from their predecessors, limiting liability for third-party claims and broadening the standards for analyzing the appropriateness of distributions to the minor. (fn8)
Public Act 95-103 clarifies a point regarding the legal training needed to act as a guardian in the context of child abuse proceedings by providing that a "guardian ad litem is not required
to be an attorney-at-law." (fn9) Previously, the law was unclear as to whether guardians ad litem were required to be lawyers. (fn10)
The legislature also modified the procedures surrounding appointments of
temporary conservators. (fn11) The new act permits the appointment of such conservators based on the findings of one doctor, rather than two, and allows for an appointment without medical evidence, provided that the court finds that such evidence is impossible to obtain because of respondent's refusal to be examined by a physician, and sufficient other evidence exists. (fn12) The act also specifically authorizes the appointment of a temporary conservator ex parte (without notice to the respondent) where later notice, counsel, and a hearing are provided. (fn13) The act extends the time limit for the existence of a temporary conservatorship from thirty to sixty days and requires that, upon the termination of a temporary conservator's duties, he file a final written report of his activities with the probate court. (fn14)
Another act affecting conservators and guardians is Public Act 95-50, which extends the period during which a standby guardianship is effective from ninety days to one year. (fn15)
C. Trusts and Trustees
The legislature modified the statutory powers of trustees in two respects. First, a presumption has been created against a trustee having the discretionary power to distribute income or principal to himself or herself unless certain conditions are met. (fn16)
Second, trustees have been given the authority to divide a
trust into two or more separate trusts. (fn17) A trustee may make such a division if it is in the best interests of the beneficiaries, the separate trusts have provisions identical to the original, and the division is made on a fractional basis based on the fair market value of the assets at the time of division. (fn18) The act allows for the beneficiaries to object or seek advance approval of the division through the probate court. (fn19)
D. Miscellaneous
1. Disclaimers
Section 45a-579 has been amended to validate disclaimers that would previously have been valid except for failure to have two attesting witnesses. (fn20) This amendment does not affect actions commenced prior to its passage. (fn21)
2. Appeals
Section 45a-186 has been amended to subject probate appeals to the superior court to procedures providing greater confidentiality in matters involving parents and children.(fn22)
In 1995, Connecticut adopted the Uniform Premarital Agreement Act, with very few modifications from the model act. (fn23) The act authorizes premarital agreements, provided that they are in writing and are signed by both parties. (fn24) The act outlines subjects over which the parties may contract, (fn25) and provides that involuntary or unconscionable arrangements are unenforceable. (fn26), Any provisions affecting the care, custody or visitation of children are subject to judicial review and modification. (fn27) Additionally, a court may order spousal support if a premarital agreement caused a party to the agreement to be eligible for public assistance. (fn28)
4. Principal and Income Act
Prior to 1995, the law required that certain trust expenses, such as fees paid annually for fund investment advice and services and trustee's compensation, be allocated half to income and
half to principal. (fn29) Public Act 95-316 grants discretion to the court to direct otherwise. (fn30)
5. U.S. Veterans Administration
Public Act 95-316 requires that the U.S. Veterans Administration be made a party to any proceeding involving the appointment of a conservator for a veteran or other beneficiary whose account benefits are payable by the Veterans Administration. (fn31)
6. Inheritance Rights
Public Act 95-316 provides that, for purposes of intestate succession, an individual is the child of his genetic parents, regardless of his genetic parents' marital status. In the case of a child born out of wedlock, the act also sets forth the situations in which the child's father is to be considered his parent for purposes of intestate succession. (fn32)
7. Uniform Child Custody jurisdiction Act
Public Act 95-316 permits "a court of this state" to make child custody determinations, rather than limiting such determinations to "the superior court." (fn33)
In order to exercise jurisdiction over a person outside the state under the Uniform Child Custody jurisdiction Act, (fn34) a Connecticut court must serve notice at least twelve days in advance of any hearing. (fn35) Public Act 95-316 provides that this notice requirement does not apply if another Connecticut law requires a different time frame. (fn36)
8. Abandoned Property
Formerly, estate property was presumed abandoned after a five-year period, after which the probate court would distribute
the property to the treasurer." Public Act 95-316 changes this to require that the probate court distribute estate property to the state treasurer as abandoned property if, after reasonable efforts, it cannot identify or locate a person entitled to it. (fn38)
9. Notice Requirements; Powers of Attorney
Public Act 95-316 changes two notice requirements to allow for regular mail delivery instead of registered or certified mail. (fn39) This act also prescribes a notice to be included in a statutory short-form power of attorney concerning rights to an accounting. (fn40)
A. Title XIX
Forsyth v. Rowe (fn41) involved a trust that limited the trustee's discretion to distribute funds to a beneficiary to situations in which it was necessary to supplement funds available from a public agency. The superior court confirmed that such a trust must be considered available to the settlor in determining Title XIX eligibility. (fn42) Because the trustee or trust advisory committee had the discretion to make payment in any amount and could invade the entire principal of the trust, the entire corpus of the trust
was deemed available to the settlor-beneficiary for the purpose of determining Medicaid eligibility. (fn43)
The court in Scinto v. Rowe (fn44) held that the Connecticut regulation determining whether the gift of a home is exempt from Title XIX is valid, despite the fact that it is more restrictive than the federal statute.
B. Actions By and Against Estates and Executors
In Andrews v. Gorby, (fn45) the plaintiff served as attorney for, and executor of, the estate of John Stark Gorby. The plaintiff charged fees for services rendered in both capacities, to which the decedent's son objected. The probate court substantially reduced the amount of plaintiffs requested executor's fees, and denied plaintiffs request for attorney's fees entirely. On appeal, the superior court affirmed the decision, despite the fact that the decedent's will provided that the executor's fees were to be paid in accordance with a fee schedule.(fn46)
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