2012 Developments in Connecticut Estate and Probate Law
| Publication year | 2021 |
| Pages | 134 |
By John R. Ivimey [*] and Jeffrey A. Cooper [**]
This Article provides a summary of recent developments affecting Connecticut estate planning and probate practice. Part I discusses 2012 legislative developments. Part II provides a brief review of the new Probate Court Rules of Procedure. Part III surveys selected 2012 case law relevant to the field.
I. Legislation[1]
A. The Connecticut Uniform Adult Protective Proceedings Jurisdiction Act[2]
Effective October 1, 2012, Connecticut joins many other states in adopting this act establishing rules and procedures governing multi-jurisdictional conservatorship matters, including the determination of which state should hear a conservatorship matter when a person has connections to more than one state. Connecticut's adoption of this law marks another step towards national uniformity on the subject.
The new law serves four major policy goals. First, it establishes uniform national definitions relating to key terms in conservatorship matters.[3] Second, it identifies the factors a Probate Court should consider in determining the proper venue for appointing a conservator, with the goal of granting jurisdiction to only one state.[4] Third, it specifies a procedure for moving existing proceedings from one state to another.[5]Finally, it establishes rules governing how and when Connecticut Probate Courts will allow conservators from other states to act in Connecticut.[6]
The act sets out key definitions, including "home state" and "significant-connection state." An individual's "home state" is defined as the state where the person was physically present for at least six consecutive months immediately before the commencement of the proceeding.[7]A "significant-connection state" is defined as a state in which the individual has a significant connection, other than mere physical presence, and in which substantial evidence concerning the individual is available.[8] Factors include the location of the person's family, the length of time the person was physically present in the state, the location of the person's property, and any other ties to the state, such as voter registration, state or local tax return filings and other registrations, licenses, social relationships and receipt of services.[9]
The act provides that a person's home state has primary jurisdiction to decide a petition for appointment of a conservator for that person or his estate.[10]Alternatively, a significant-connection state may exercise jurisdiction if: (1) the person did not have a home state within the past six months; (2) the home state declined jurisdiction; or (3) no other proceeding has been commenced in the home state or another state with a significant connection, no party objects, and the Probate Court concludes that it is the appropriate forum.[11]Taken in combination, these new rules are intended to ensure that only one jurisdiction exercises jurisdiction over a conservatorship matter for a given person and/or that person's estate, and that such jurisdiction ideally will be the one with which that person has the deepest ties.
Consistent with this policy goal, the act also provides that in order to transfer a conservatorship to another state, a petitioner needs court orders both from the court trans- f erring the case and from the court accepting the case.[12] Generally, to transfer the case, the transferring court must find that the individual is located in the other state or is reasonably expected to move permanently to the other state, no one has objected and proven that the transfer is contrary to the person's interests, and plans for the care for the person in the other state are reasonable and sufficient taking into account the person's desires and abilities.[13]
This new act should help Connecticut and other states better coordinate their actions on these crucial matters.
B. An Act Concerning the Appointment of a Guardian Ad Litem for a Person who is Subject to a Conservatorship Proceeding or a Proceeding Concerning Administration of Treatment for a Psychiatric Disability[14]
This act restricts the discretion of the Probate Courts and the Superior Courts to appoint a guardian ad litem in certain types of matters. The act prohibits all guardian ad litem appointments in habeas corpus proceedings.[15] It prohibits guardian ad litem appointments in proceedings involving the involuntary administration of medication unless the Probate Court determines that the patient is incapable of giving informed consent.[16]It prohibits the appointment of a guardian ad litem for a respondent in a conservatorship proceeding prior to a determination of incapacity.[17]
After a conservator is appointed for an incapable person, the act restricts the ability of a judge to appoint a guardian ad litem in future proceedings. Such an appointment may be made for only limited, specified purposes or upon finding that the conserved person's attorney is unable to effectively determine the client's wishes.[18] If a guardian ad litem is appointed, the act also requires the judge to reasonably limit the powers of the guardian ad litem and the duration of her appointment, including mandating that the guardian ad litems appointment ends when the guardian ad litem files her report.[19]
The new act should help achieve greater uniformity of practice from one court to another and protect individuals' due process rights by prohibiting the injudicious appointment of a guardian ad litem in these crucial matters.
C. An Act Concerning Probate Fees[20]
This act makes several minor changes to the Probate Court fee statute, including the following:
● Amending relevant statutes to consistently refer to probate charges as "fees."[21]
● Repealing the assessment of both multiple $25 fees for multiple hearings on the same matter and the supplemental $25 per hour fee for a hearing exceeding one hour.[22]
● Providing for a potential adjustment to the estate fee when the Department of Administrative Services acts as legal representative.[23]
● Imposing a $25 fee for providing a digital copy of an audio recording of a probate hearing.[24]
II. Probate Practice Book
In November 2012 the Supreme Court approved new Probate Court Rules of Procedure to replace the existing Probate Practice Book effective July 1, 2013.[25] The new r ules are designed to encourage uniformity among the courts, establish best practices, reduce administrative requirements in uncontested matters, and empower Probate Court judges to better manage contested matters. The rules are divided into four sections: General Provisions, [26]Rules for All Case Types, [27] Rules for Specific Case Types[28] and Rules for Hearings.[29] Although a summary of all of these new rules is well beyond the scope of this article, we highlight the following rules which have generated the most initial discussion among members of the bar:
•Rule 1 contains a series of definitions integral to probate practice. Many of these are clarifications of existing terms familiar to most practitioners, but some terms are new to Connecticut practice.[30]
•Rule 5 provides that an attorney now must file a signed appearance when appearing in a matter, and must certify that a copy of the appearance was sent to other parties or their representatives.[31]
•Rule 6 provides that, except in limited circumstances, an application will not be considered "filed" until the applicable fee is received by the court.[32]
•Rule 7 clarifies expectations and requirements for sending notices and copies of documents to other parties including, when applicable, the Attorney General's office.[33]
•Rule 8 facilitates expanded use of streamline notice procedures.[34]
•Rule 30 provides new rules for notice with respect to a petition to admit a will for a decedent's estate, including notice to beneficiaries under the will and to beneficiaries under any prior will which may be in the court's possession.[35]
•Rule 30 also adds a requirement to file an annual report on the status of an estate not completed within one year of the fiduciary's appointment.[36]
•Rule 31 provides that the court will record all attachments to the estate tax return unless the taxpayer requests that specific attachments need not be recorded and the Court agrees they are not necessary.[37]
•Pursuant to Rule 32 "presumptive remainder beneficiaries" of a trust will be entitled to certain notice and information and often will enjoy superior status to more remote, or merely contingent, beneficiaries.[38]
•Rule 32 prohibits a court from requiring ongoing periodic accounts for testamentary trusts if they are excused by the will, and it allows the court to waive the final account if the current beneficiaries and presumptive remainder beneficiaries agree.[39] This does not, however, deprive the court of jurisdiction to order a one-time accounting as relates to a controversy before the Court.
•Rule 33 provides that Conservators may petition the Court for guidance concerning the administration of joint assets or liabilities.[40]
•Rule 33 also provides that Conservators need court approval to establish a trust, and provides for a related review of the conserved person's existing estate planning documents.[41]
•Rules 36 through 38 establish new rules governing fiduciary accountings. The new rules are intended to address criticisms of Connecticut's previous accounting requirements by allowing for more flexibility in accounting formats.[42] In addition, in many cases the new rules allow for submission of a simplified "financial report" in lieu of a more detailed accounting.[43]
•Rule 39 governs attorney and fiduciary fees. The rule largely tracks existing law while affording the opportunity to secure prior court approval of fees.[44]
•Rule 60 provides detailed guidance for the...
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