WILLS & TRUSTS

What happens if I do nothing?
Believe it or not, a majority of Americans choose to do nothing. It has been reported that 70% of all Americans have no Estate Plan. As a consequence, upon their deaths, state law dictates how their probate estate is distributed. Unfortunately, the government’s plan has no particular concern for the best interests of your family.

What are some of the disadvantages of using preprinted will forms?
Preprinted will forms usually do not fulfill the needs of the person writing the will. Also, if part of the form is preprinted, part of it is typed and another part of it is handwritten someone might be able to contest the will claiming part of it had been forged. This is because any change in a will leaves room for doubt as to whether the testator, who is the person writing the will, made the changes or if someone else did. People tend to cross out, delete or add words to these preprinted forms. It can be hard to ascertain who made these changes and why. This problem also puts the will in jeopardy of being contested. Also, these preprinted forms are general forms and do not take into account the specific needs of the estate. Therefore, property may accidentally be left out, inheritors might not be included, and possible tax advantages not taken into account. Your documents should stay consistent with your future goals and plans. Consult with an Attorney to see what may be right for you.

What are some guidelines in writing up a will?
The following are some guidelines in writing up a will. The first one is to try to avoid using preprinted forms. The second one is to use the same typeface for the whole document. This is because any changes to the document can leave room for a claim that someone other than the testator, who is the person writing the will, wrote the part that has the different typeface. Also, no blank spaces should be left in a will, since that could leave room for someone to write in additional information. The will should be drafted in a clear manner so the testator`s intent is perfectly clear to all that are involved. The language should be simple. All pages of the will should be signed and dated. The will`s witnesses ideally should be younger than the testator and not one of the will`s inheritors. Witnesses should be told that they are witnessing the signing of the will and might be called to testify to that fact. Witnesses, however, are not obligated to read the will or be informed of its contents. Codicils should be used to make minor changes to the will. The full names, addresses and relationships to the testators of all the inheritors should be included in the will.

What are some of the various types of wills?
There are various types of wills. An ambulatory will is a will that a person can change during that person`s lifetime. A double will is one in which two people join together, each leaving that person`s property and estate to the other person. The surviving person then owns both estates. This type of will is also sometimes called a counter will, joint and mutual will, or reciprocal will. Holographic wills are ones that are entirely handwritten, dated and signed by the person whose will it is. A living will is one that authorizes the withholding or cessation of life-sustaining medical treatments from an individual, who has been too incapacitated due to a life threatening and debilitating illness to make that decision. A qualified attorney can help you decide which type of will is best for you.

Under what circumstances can an adopted child inherit from a parent when the parent left no will?
Adopted children are considered children of their adopted parents for purposes of inheriting from an estate where there was no will. Adopted children can only inherit from the child`s natural parents` estate when the natural parent left no will, under the following circumstances: (1) The natural parent and adopted child lived together at any time as parent and child or the natural parent was married to or lived with the other natural parent and then died before the adopted child`s birth. (2) The adopted child was adopted by either of the natural parents` spouses or after either of the natural parents had died. For more information as to whether a particular adopted person can inherit from a parent who left no will, please contact an attorney.

Can children inherit from a foster parent or stepparent who died without a will?
A child can inherit from a foster parent or stepparent, who died without a will, even though the foster parent or stepparent did not adopt the child if the following criteria are met. (1) The relationship between the child and the stepparent or foster parent commenced when the child was still a minor and continued throughout their lifetimes. (2) The foster parent or stepparent would have adopted the child if there were not a legal barrier preventing the foster parent or stepparent to do so. For more information as to whether a particular child can inherit from a foster parent or stepparent, please contact an attorney.

What is a codicil?
A codicil is a document that is used to explain, change, add to, or take away from, the existing will. It is not meant to contain the entire will itself, nor is it meant to totally revoke a prior will. The codicil serves to make changes to the existing will without having to rewrite the will entirely.

When should a will be changed?
A person should change one`s will when one marries, becomes a parent, gets divorced, moves to another state (since one`s will must be probated in the state one lived in at the time of death), if either one`s or one`s beneficiaries` financial state has changed, and/ or if one`s spouse or beneficiary has died. For more information as to whether you should change your will, please contact an attorney.

What is a Simultaneous Death and Common Disaster Provision?
Simultaneous Death and Common Disaster Provision is a clause that is usually included in the wills of husbands and wives. The clause provides that when it is impossible to determine which spouse of a married couple died first (such as when they both died in a car accident) the husband is automatically considered to have died before his wife. Then any beneficiary who is mentioned in both their wills to inherit (such as their children) can inherit the estate. This clause not only helps lessen the amount of estate taxes; it also speeds up the transfer of probate assets and helps resolve the issue of how to dispose of nonprobate assets, such as proceeds from insurance policies. It also helps avoid delays and the extra costs of double administration. Please contact an attorney for more information.

Are there provisions that cannot be put in one`s will?
Generally speaking the courts will allow a provision in a will as long as that provision does not violate public policy. Therefore, it is likely a court will allow one to put a provision in a will that says that a beneficiary will not inherit from the estate if the beneficiary does not marry a Catholic person. This is because the public policy is that people should be allowed to get married and that condition would not prevent a Catholic person from not marrying at all. However, the courts would probably not allow provisions stating a beneficiary could not inherit from the estate unless the beneficiary divorces the beneficiary`s wife or if the beneficiary never marries, since this would be a violation of public policy. Also, a will maker cannot leave the estate directly to a pet. If one wants to leave one`s money to a pet, one must assign a trustee and then instruct the trustee to use the money for the pet`s care. For more information as to whether a certain provision you would like to be included in your will is contestable, please contact an attorney.

ESTATE PLANNING 

What is estate planning?
Estate planning is a process to consider alternatives for, to think through, and to set up legally effective arrangements that would meet your specific wishes if something happens to you or those you care about. Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees, and sets up contingency planning to make sure your wishes regarding health care treatment are followed. On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die. On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you select would do that for you, and know when you would want them to authorize heroic measures and when you would prefer they pull the plug.

Does it make sense to use an attorney? Is it expensive?
Only an attorney who regularly practices in the fields of wills, trusts, probate and estate planning is able to provide you with really sound legal advice as you put your estate plan into place. Attorneys are subject to regulation by state bar organizations, many of which have continuing education requirements and mandatory liability insurance in case the lawyer makes a mistake. When you speak with an attorney, you can get answers to your questions --including how much it would cost. Often the expense incurred in retaining an attorney to prepare and help you put an estate plan into place is worth hundreds of times what you and your family would pay with no planning or poor planning. It would also avoid the financial and emotional nightmares that can occur with a poorly drafted (or improper) plan.

When should I start my estate plan?
The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract. If you are unable to manage your own affairs or suffer from some other disability which affects your legal capacity, your estate plan may be effectively challenged by those who assert that you lacked capacity at the time the documents were created, that you were subjected to fraud, coercion or undue influence during the creation and implementation of your plan.

What sorts of instructions are made as part of an estate plan?
An estate plan consists of one or more documents that set forth instructions. Some documents are used to control health care decisions, others control your property in the event of your incapacity, and still other documents will control the distribution of your property in the event of your death.

What about books on estate planning?
As you begin the process caveat emptor (let the buyer beware). There is a lot of information out there; while some of it is very good, some is misleading at best. There are many over-the counter guides to estate planning available at bookstores. Some are pretty decent, most are awful. If you are planning to do it yourself, be prepared to spend a fair amount of time on this project.

Should I have an estate plan?
You should have an estate plan if:

• You are the parent of minor children
• You have property that you care about 
• You care about your health care treatment.

If you do not have minor children, do not care about your property, and have no concerns about your health care treatment, then you do not need an estate plan. But if you meet any of these categories above, you should have an estate plan.

What are some typical estate planning documents?
Several of the following documents are typically used as part of the estate planning process:

A Will, sometimes called a Last Will and Testament, to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it. A Will also typically names someone you select to be your Personal Representative (or Executor) to carry out your instructions and names a Guardian if you have minor children. A Will only becomes effective upon your death, and after it is admitted to probate.

A Durable Power of Attorney for Health Care or Health Care Proxy appoints a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide informed consent.

A Living Will or Directive to Physicians is an advance directive that gives doctors and hospitals your instructions regarding the nature and extent of the care you want should you suffer permanent incapacity, such as an irreversible coma.

A Durable Power of Attorney for Property appoints a person you designate to act for you and handle financial matters should you be unable or perhaps unavailable to do so.

A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You can select the person or persons you want -- often even yourself -- as the Trustee(s) to carry out the instructions you want in the Trust and name one or more Successor Trustees to take over if you cannot. Unlike a Will, a Trust usually becomes effective immediately, continues in force during your lifetime even in the event of your incapacity, and continues after your death. Most Trusts are revocable which allows the person who creates the Trust to make future changes, modifications and even to terminate it. (If the Trust is irrevocable, changes, modifications and termination are very difficult (and sometime impossible), although such Trusts often carry some tax benefits.) Trusts also help you avoid or minimize the expenses, delays and publicity of probate.

A Family Limited Partnership can be used to own and manage your property, in a similar manner to a Trust, but allowing additional tax planning techniques to be employed. Family Limited Partnerships are typically used for those who have large estates and thus have a need for specialized estate planning in order to minimize federal and state estate/death/inheritance taxes as well as provide elements of asset protection.

What is the QTIP trust?
QTIP trust stands for the qualified terminable interest property trust. It allows certain property to qualify for an estate and gift tax marital deduction even though it ordinarily would not qualify for such tax deductions. One type of QTIP property that can qualify for a marital tax deduction are trusts which provides income to a surviving spouse for life and after the spouse dies the remainder goes to the children. Please contact an attorney if you would like more information about this type of trust.

How can an estate plan prevent a conservatorship proceeding?
An estate plan uses several tools that can prevent the court from gaining jurisdiction over your affairs.

A Living Will or Directive to Physicians is used to determine if artificial life support systems are to be used or withheld.

A Durable Power of Attorney for Health Care is used to provide authority to a person, in whom you have the utmost trust and confidence, to make decisions regarding health care treatment when you are unable to provide informed consent.

A Durable Power of Attorney for Property enables you to authorize a person to act in your place and stead in the event of your incapacity; this attorney-in-fact can manage your financial affairs without the need to have intervention by the courts.

A Trust or Family Limited Partnership is used to hold property; the Trustees or Partners manage the property held by either of these entities.

Both the Trust and the Family Limited Partnership continue to manage the property even if you are incapacitated.

Thus, a properly prepared estate plan can enable you to avoid a Conservatorship proceeding over your estate. Compared to the cost of a Conservatorship proceeding, an estate plan can be very attractive.

PROBATE 

What is probate?
Probate is a legal process during which the court oversees the distribution of assets that were left in a Will. This process can take a matter of months or even a number of years to be completed.

Where does probate occur?
Your Will is probated in the Court of the county and state in which you lived at the time of your death. If you own any property in another state, another probate proceeding will be started in that state and county.

What assets are subject to probate administration?
All assets owned by you in your own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration when you die.

How is the Will probated?
The following is a VERY simplified outline the general probate process:

The original of the Will is deposited with the Court (if any).

The filing of the Petition for Probate first needs to be published in a local newspaper, before the Executor named in the Will (if one exists) or Administrator (if there is no Will) is appointed. Executors and Administrators are commonly referred to as Personal Representatives, so from this point forward in our outline, we will refer to Will Executors and Administrators simply as Personal Representatives.

The Personal Representative then files a Petition for Probate of the Estate.

Generally, for a period of four months from the date of publication of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.

During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc.

When the four month Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.

If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, one or more claimants not being notified in the original four-month Claim period so they end up having to be re-noticed, etc. This is among the reasons why it is important to have a good probate attorney; it reduces the chances of complications during the probate process.

Is there any way to avoid probate?
Yes, most states have a summary procedure whereby probate is avoided if the value of your assets is less than a certain value, or if the only heir or beneficiary is your spouse. For example, in California, if your assets amount to less than $100,000, probate can be avoided entirely. Property held in joint tenancy or with a beneficiary designation is not counted toward this $100,000. Also, no more than $10,000 of this $100,000 can be held in real estate. Otherwise, you will need to prepare a Trust in order for your assets to be distributed outside of probate court. It is in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.

CONNECTICUT SPECIFIC FAQ's

Do I have the right to make health care decisions?
Yes. Adult patients in Connecticut have the right to determine what, if any, medical treatment they will receive. As a capable adult, you may agree to treatment that may help you or you may refuse treatment even if the treatment might keep you alive longer.

Do I have the right to information needed to make a health care decision?
Yes. Physicians have the responsibility to provide patients with information that can help them to make a decision. Your physician will explain what treatments may help you how each treatment may effect you, that is, how it can help you and what, if any, serious problems or side effects the treatment is likely to cause what may happen if you decide not to receive treatment. Your physician may also recommend what, if any, treatment is appropriate, but the final decision is yours to make. All of this information is provided so you can exercise your right to decide your treatment wisely.

What is an advance directive?
An advance directive is a legal document through which you may provide your directions or wishes as to your medical care. It is used when you are unable to make or communicate your decisions about your medical treatment. It is prepared before any condition or circumstance occurs that causes you to be unable to actively make a decision about your medical care. In Connecticut, there are three types of advance directives, the living will or health care instructions, the appointment of a health care agent the appointment of an attorney-in-fact for health care decisions, also called a durable power of attorney for health care decisions.

Must I have an advance directive?
No. You do not have to make a living will or other type of advance directive to receive medical care or to be admitted to a hospital, nursing home or other health care facility. No person can be denied medical care or admission based on whether or not they have signed a living will or other type of advance directive. If someone refuses to provide you medical care or admit you unless you sign a living will or other type of advance directive, contact the Department of Public Health and Addiction Services in Hartford, Connecticut at 566-5758.

What is a living will?
A living will is a document that states whether you wish to have administered life sustaining procedures or treatment should you be in a terminal condition or permanently unconscious.

What is a life support system?
A "life support system" is a form of treatment that only delays the time of your death or maintains you in a state of permanent unconsciousness. Life support systems may include among other things devices such as respirators and dialysis; cardiopulmonary resuscitation (CPR); food and fluids supplied by artificial means, such as feeding tubes and intravenous fluids. It does not include normal feeding and fluids, such as by hand or straw or medications such as antibiotics in special circumstances.

Will I receive medication for pain if I have a living will?
Yes. A living will does not affect the provision of pain medication or care designed solely to maintain your physical comfort (for example, care designed to maintain your circulation or health of your skin and muscles). This type of care will be provided whenever appropriate.

What is a health care agent?
A health care agent is a person whom you authorize in writing to convey your wishes concerning whether you wish to withhold or withdraw life support systems. The agent does not become involved in any other treatment decisions.

What is an attorney-in-fact for health care decisions?
An attorney-in-fact for health care decisions is a person whom you name in a document called a durable power of attorney, to make medical decisions other than withdrawal of life support systems on your behalf should you become unable to make or communicate such decisions yourself. Your attorney-in-fact may make decisions about any aspect of your medical treatment except in three areas. He or she may not make decisions regarding: (1) withdrawal of life support systems; (2) withdrawal of food and fluids; and (3) medical treatment designed solely to maintain your physical comfort.

What is a conservator?
A "conservator of the person" is someone appointed by the Probate Court when the Court finds that a person is incapable of caring for himself/herself including the inability to make decisions about his or her medical care. The conservator of the person has responsibility for the general custody and care of the incapable individual and has the power to give consent for the medical care, treatment and services provided to the incapable person. You can name in advance the person you want the Court to appoint as your conservator if you become incapable of making your own decisions. If you have a conservator, he or she will be consulted in all medical care decisions. If you have a living will, however, the conservator's consent is not required to carry out your wishes as expressed in the living will.