2010 Developments in Connecticut Estate and Probate Law

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 85 Pg. 179
Connecticut Bar Journal
Volume 85.


Connecticut Bar Journal
Volume 85, No. 2, Pg. 179
June 2011


By Jeffrey A. Cooper(fn*) And John R. Ivimey(fn**)

This Article provides a summary of recent developments impacting Connecticut estate planning and probate practice. Part I discusses 2010 legislative developments. Part II surveys selected 2010 case law relevant to the field.

I. Legislation

The General Assembly passed only one significant piece of estates-related legislation during 2010, an act making numerous revisions to the statutes governing probate court fees.(fn1) As discussed further below, changes made by the legislation include lowering the fees assessed against estates that own property in more than one jurisdiction, imposing interest on probate court fees, and eliminating a peculiar fee previously assessed on jointly owned real estate.

First, for proceedings commencing after January 1, 2011, probate courts will collect pro-rated fees on estates of those domiciled in Connecticut who own real or tangible personal property located outside of Connecticut and those domiciled outside of Connecticut who own property located in Connecticut.(fn2) Previously Connecticut assessed a fee in each case based upon the value of all of the decedent's property wherever located.(fn3) For the estate of someone who died while domiciled in Connecticut, the new act now excludes the fair market value of the person's real or tangible personal property located outside of Connecticut.(fn4) For the estate of someone who died while not domiciled in Connecticut, but who owned real or tangible personal property in Connecticut at death, the act excludes all of the decedent's property other than the real or tangible property in Connecticut.(fn5)

Second, for the first time, the act imposes interest on unpaid probate court fees for the settlement of a person's estate.(fn6) Effective for the estates of decedents who die on or after January 1, 2011, interest at the rate of 0.5% per month or portion thereof will be imposed on fees not paid within 30 days of the probate court's invoice.(fn7) Typically, the invoice for fees will be mailed after the filing of the Connecticut estate tax return. However, if a required estate tax return is not filed with the probate court by the due date, including extensions, the act applies the 0.5% interest rate to any fees that would have been due had the return been timely filed, beginning 30 days after the later of the due date or extension expiration date.(fn8) The probate court can extend the time for paying any fees, including interest thereon, if it determines that requiring payment by the due date would cause undue hardship.(fn9)

Third, for estates commenced after January 1, 2011, the act also eliminates an outdated relic of Connecticut's prior succession tax regime by eliminating the 0.1% fee previously assessed against interests in non-solely-owned real estate held by estates with assets under $600,000.(fn10)

While the above sections may prove to be the most relevant to practitioners, the legislation makes numerous other revisions. Included among these is a new provision enabling parties, or their counsel, to require that the probate court produce an audio recording of court proceedings.(fn11)

II. Case Law

A. Probate Appeals

1. Timeliness of Appeal

In DeBruycker v. Duval,(fn12) the Superior Court denied a motion to dismiss a probate appeal as untimely. The case reveals a serious ambiguity in two of Connecticut's statutes governing probate appeals. Unless and until the General Assembly reconciles these conflicting statutory provisions, practitioners must be aware of this potential source of controversy.

At issue was the plaintiff's appeal of a probate court order allowing the defendant's conservator to sell certain real estate.(fn13) Plaintiff contended that the timeliness of his appeal was governed by General Statutes Section 45a-186. That statute provides that while most categories of probate appeals are timely if taken "not later than thirty days after mailing of an order, denial or decree," appeals relating to Conservatorship matters such as the one at bar are subject to an extended 45-day appeals deadline.(fn14) The defendant countered that General Statutes Section 45a-187 governed.(fn15) That statute contains no reference to the extended 45-day deadline for filing certain types of appeals but simply imposes a 30-day deadline for filing all probate appeals.

As discussed in a previous update,(fn16) the General Assembly's 2007 revision of certain probate procedures created a disconnect between these two statutes. Prior to that revision, General Statutes Section 45a-186 governed probate appellate procedures while Section 45a-187 set out the relevant deadlines. In 2007, the legislature completely revised Section 45-186 to govern both appellate procedures and deadlines.(fn17) However, the legislature seemingly neglected to modify Section 45-187, which continues to include the previous (presumably superseded) deadlines.

In the case at bar, the Superior Court found these two statutes to be in conflict and turned to two principles of statutory construction in an attempt to resolve that conflict. Specifically, the court invoked the maxims of statutory construction that: (1) any statutory change is "intended to change the meaning of the statute and accomplish some purpose,"(fn18) and (2) multiple statutes addressing the same subject should be "read together to create a harmonious body of law."(fn19) Applying these principles of statutory construction to the case at bar, the court concluded that the 45-day deadline found in Section 45a-186 supersedes the older provisions found in Section 45a-187.(fn20)

We find the court's approach to be sound and urge the General Assembly to codify it by amending the text of Section 45a-187 to conform to the new provisions found in Section 45a-186.

While failure to file a timely probate appeal will deprive the court of subject matter jurisdiction, readers should be aware that deadlines are a proverbial two way street. For example, in Fielding v. Probate Court for District of Enfield,(fn21) the court denied an untimely motion to dismiss an untimely appeal.(fn22)

2. Notice

In Godin v. Estate of Buchholz,(fn23) the Superior Court denied a motion to dismiss the plaintiff's timely probate appeal for her failure to properly serve all interested parties. In this case, plaintiff had attempted to effectuate service by mail, violating the clear language of General Statutes Section 45a-186(b), which mandates personal service "by state marshal, constable or an indifferent person."(fn24)

Under General Statutes Section 45a-186 as amended in 2007, a probate appeal is timely commenced by filing in the Superior Court. This approach differs from that under prior law (whereby an appeal was initiated through the probate court) as well as that applicable to general civil actions (which are commenced by service of process). In further contrast with the statutes governing general civil actions, General Statutes Section 45a-186(d) provides a simple remedy for failure to properly notice an interested party by directing the Court to order such notice.(fn25) In light of this statutory regime, the court concluded...

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