Attorney O's Midnight Musings: Connecticut Law » Probate

Be Careful How You Title Your Bank Accounts for Estate Purposes

Irene C. Olszewski, Esq. — Thu, 10 Nov 2011 03:03:39 +0000

One of the most common problems I face with clients handling the estate of a deceased loved one concerns bank accounts and other financial instruments. In the cases to which I refer, a parent dies leaving no surviving spouse and at least two or more surviving children.

Hypothetically, let’s say that dad passed away before mom. Mom’s frail health and failing eyesight have made it difficult for her to write checks and pay her bills. Daughter lives close enough to mom so that she can take over the task of bill paying and other relevant matters. Son helps mom by doing maintenance on her home and tasks such as mowing the lawn and plowing snow.

Mom no longer wants to have to sign the checks daughter writes to her creditors because she can’t see well enough and it is a frustrating experience. The bank tells mom that it would be a simple matter to add daughter’s name to her checking and savings accounts so daughter can sign checks and make transfers without mom. Mom agrees and adds daughter’s name to accounts.

When mom dies, daughter goes to attorney to handle mom’s Probate estate. Attorney tells her that mom’s house, car, collection of artwork and antiques are all part of the Probate estate. Attorney also tells her that mom’s checking and savings accounts are not Probate assets because they are considered joint accounts. Those accounts now belong to the surviving account holder, which is the daughter.

The combined remaining balances of mom’s checking and savings accounts is $150,000. Son expects that sister will turn over his rightful share of those accounts, or $75,000. Sister refuses, saying that the money belongs to her because she is the survivor on the accounts. A family feud is now in full swing.

Mom likely did not intend for daughter to end up with all the money in her bank accounts. It is more probable that had she been asked, she would have said she intended for it to be divided equally among her two children. Unfortunately, it is daughter’s word against son’s because mom did not leave any written documentation proving otherwise, nor had she ever articulated her intentions to either of her children.

Rather than go into the legal options that might be available to the son, I am going to explain what you might do in order not to leave your loved ones in a similar situation.

Yes, adding someone’s name to your bank accounts can make life more convenient for purposes of having someone assist you with bill-paying and management of your finances. If you only have one child, for example, it wouldn’t matter if you fully intended to leave them your money after your death. But if you have multiple children — or if you want to draft a Will leaving your remaining estate to multiple people, such as children and grandchildren, the above example demonstrates how this would be problematic.

Rather than merely adding someone’s name to your bank accounts, Certificates of Deposit, IRA’s and other similar financial instruments, you — and your future beneficiaries — are best served by you executing a Power of Attorney. Why? In the hypothetical presented above, A Power of Attorney would have allowed daughter to handle mom’s finances and pay her bills without mom having to sign the checks. The major difference is that on mom’s death, her bank accounts would be mom’s sole assets and therefore would be distributed as part of the Probate estate. Daughter would not have survivorship rights to the accounts and son would not necessarily be left out in the cold. Of course, mom’s Will might be another story — she might disinherit both of them!

Before you opt for simplicity, consider your intentions. An attorney can draft a limited Power of Attorney, for example, that restricts your Power of Attorney (POA) to only being able to manage specific accounts or tasks. There are ways to protect yourself while still allowing someone else to assist you with tasks you are no longer able to manage.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

What to Do AFTER You Legally Change Your Name

Irene C. Olszewski, Esq. — Tue, 08 Nov 2011 23:11:33 +0000

People change their last names for a variety of reasons: marriage and divorce being the most common. Sometimes, people change their last names (or entire names) because they either don’t like the one given to them at birth or they have some ill feelings toward a family member and don’t want to be associated with the family name. [Read my previous post on the procedure for name changes in the Probate Court]. No matter what the reason, there are things you must do after you have legally changed your name. While I certainly won’t be naming everyone you should contact, here’s a jumping off point to help you out. Some of the items are linked to websites that provide specific information and forms. (They are in bold face). When the information is State-specific, it will refer only to Connecticut. If you live in another state, you should consult the appropriate agency in your area.

Birth Certificate
Driver’s License and Automobile Registration
Social Security Card
Passport
Credit Cards (call the individual bank or company for specifics)
Loans (student educational loans, auto loans, home loans, personal loans, etc).
Bank Accounts (don’t forget your ATM cards)
Financial instruments such as investment accounts, stocks, etc.
Pension Plans
Payroll Department o your employer
Department of Revenue Services (State taxes)
Internal Revenue Service (Federal taxes)
Town Clerk & Assessor’s Office (property taxes on home and auto)
Land Records (if you own real estate)
Registrar of Voters
Medical Professionals (doctors, dentist, optometrist)
Utility Companies
Airline Frequent Flyer Programs
Insurance Companies (medical, home, auto, etc.)
Schools
Professional Organizations you belong to
Auto Club (such as AAA)
Veterans Administration (if you are affiliated with the military)
Funeral Home (if you have a pre-paid burial plan)
Support Enforcement Services if you pay or receive child support
Lawyer (you may also need to revise your Will or other legal documents to reflect the change)
Mortgage Company and/or Landlord

As you can see, there’s more to a name change than simply changing your signature. Make sure to do it properly to avoid costly headaches later on.

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Creditors’ Claims Against a Decedent’s Estate

Irene C. Olszewski, Esq. — Wed, 05 Oct 2011 00:20:42 +0000

When a person dies, the settlement of their estate falls under the jurisdiction of the Probate Court in the town that person lived in at the time of their death. The person who dies is known as the decedent.

Within 30 days of the decedent’s death, an application should be made to the Probate Court to open the estate and appoint the fiduciary (the person who will be in charge of handling the estate). If the decedent left a Last Will and Testament, the person named as executor will usually be appointed (unless there is a compelling reason for the Court not to do so). If the decedent died without a Will, the Court will appoint an administrator. For more on executors and administrators, see my previous post here.

Within 14 days after the appointment of the fiduciary (executor or administrator), the Probate Court will place a notice in the local newspaper alerting possible creditors that an estate has been opened. If the fiduciary chooses, he or she may send a certified notice to each known creditor giving them 90 days to present a claim. Otherwise, creditors who receive notification via newspaper have 150 days to submit claims to the fiduciary.

The fiduciary must determine the validity of the claims. If a claim is doubtful, the fiduciary should request the guidance of the Probate Court.

The fiduciary should not pay any claims until a Court has determined it is proper to pay them. The fiduciary is required to submit a list of the creditors who were notified and a list of all claims made against the estate that were received. That must be done within 60 days after the first 150 day claims period has expired.

If the estate’s assets are not enough to pay the claims against it, the judge may issue a ruling declaring the estate insolvent. The procedures for settling an insolvent estate are very different from settling a solvent estate.

If you have been named the executor or administrator of a decedent’s estate, you may be wise to consult an attorney who handles Probate matters. The settling of estates is often complicated and you, as the fiduciary, don’t want to be held liable for errors or omissions that might arise from simply not knowing what was supposed to have been done.

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Executor Versus Administrator: What’s the Difference?

Irene C. Olszewski, Esq. — Fri, 30 Sep 2011 18:24:11 +0000

The average person finds most legal terms confusing and I certainly understand why. Two of the most commonly misunderstood legal terms in the probate world are executor and administrator. I’ll attempt to clarify the terms for you here.

When a person dies leaving a Last Will and Testament, they have designated a person (or persons)within that Will to handle the disposition of their probate estate (money, personal items and real estate). The person named in the Will is known as the executor (executrix if female).

When a person dies without leaving a Will, someone has to be appointed by the probate court to handle the disposition of that person’s probate estate. The person appointed by the court is known as an administrator (administratrix if female). Sometimes, even if an executor has been named under a decedent’s Will, the court may appoint an administrator to handle the estate. Examples might be if the named executor is unable or unwilling to serve as executor, or if there are co-executors who are at odds with each other, making them unable to act in the best interest of the estate.

Essentially, the job of the executor or administrator is the same: to file the estate with the appropriate Probate Court and see it to the end. It’s not an easy task in many cases. If you find yourself in the position of serving as an executor or administrator, you are wise to call an attorney to assist you in the complexities of working through the estate properly.

I hope this clears up some of the confusion.

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Election of a Statutory Share of Decedent’s Estate for Surviving Spouses

Irene C. Olszewski, Esq. — Fri, 13 May 2011 17:00:46 +0000

When a person has a Last Will and Testament prepared, he or she (known as the Testator or Testatrix) may dispose of real estate and personal property in any way they wish; however, this is subject to the limitations of a spousal elective share and a family allowance.

If your spouse dies leaving a Will that does not name you as a beneficiary, you (as the surviving spouse) may claim your spousal elective share. That means that under Connecticut General Statutes Sec. 45a-436(a) you may elect to receive:

“a life estate of one-third in value of all the property passing under the will, real and personal, legally or equitably owned by the deceased spouse at the time of his or her death, after the payment of all debts and charges against the estate. The right to such third shall not be defeated by any disposition of the property by will to other parties.”

If you have a conservator or guardian, pay particular attention to the provisions of subsection (c) which reads:

“The surviving spouse, or the conservator or guardian of the estate of the surviving spouse, with the approval, after notice and hearing, of the court of probate by which such conservator or guardian was appointed, shall, not later than one hundred fifty days from the date of the appointment of the first fiduciary, as defined in section 45a-353, file a notice, in writing, of his or her intention to take the statutory share with the court of probate before which the estate is in settlement, and if such notice is not so filed, the surviving spouse shall be barred of such statutory share.”

There are other provisions if your spouse did name you in his or her Will:

“If the deceased spouse has by will devised or bequeathed a portion of his or her property to his or her surviving spouse, such provision shall be taken to be in lieu of the statutory share unless the contrary is expressly stated in the will or clearly appears therein; but, in any such case, the surviving spouse may elect to take the statutory share in lieu of the provision of the will.”

If a support allowance is involved, the Statute provides:

“If the court of probate has allowed a support allowance under section 45a-320 from the deceased spouse’s estate for support of the surviving spouse and for the support of his or her family, the surviving spouse shall not take his or her statutory share until the expiration of the time for which the support allowance is made.”

In the case of prenuptial or postnuptial agreements:

“The provisions of this section with regard to the statutory share of the surviving spouse in the property of the deceased spouse shall not apply to any case in which, by written contract made before or after marriage, either party has received from the other what was intended as a provision in lieu of the statutory share.”

Finally, you are not entitled to a statutory share or an intestate share (meaning there was no Will), without sufficient cause, if you abandoned your spouse and continued that abandonment to the time of your spouse’s death.

For more information on your spousal rights and elective shares, you should contact a licensed attorney.

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Changing Your Name in the Probate Court

Irene C. Olszewski, Esq. — Wed, 11 May 2011 23:04:32 +0000

There are a variety of reasons that an adult person might wish to change his or her name. If a name change is sought at the time of a divorce decree, the Family Court judge has the jurisdiction to order the change. At other times, however, you must file an application with the Probate Court in the town in which you reside.

It’s important to understand that requesting a change of name must be for valid reasons. In other words, you can’t request a name change in order to deceive, defraud or mislead anyone. Let me illustrate:

I once received a call from a man who explained that he wanted to change his name because he had outstanding arrest warrants in three states. He had moved to Connecticut a year or so before, met a wonderful woman whom he promptly married, and assured me that he wanted to start his life over with a clean slate. Oops, no name change for that guy. While I certainly appreciated his desire to start over, name changes are not granted in order to help someone outrun the law.

I had an client who changed her last name to that of her stepfather because, she explained, her own father had abandoned her as a child and never looked back while her stepfather had ‘been there’ for her throughout her life. Now that’s a valid reason. No outstanding arrest warrants, just honoring the man who stepped in when her own father bowed out.

Another woman called my office requesting help with a name change. She told me that her ex-husband had intentionally ruined her credit during their contentious divorce and as a result, she was getting regular phone calls from collection agencies. She couldn’t take it any more, she insisted. I hated to tell her that courts don’t grant name changes for people wishing to sidestep creditors — even if they are tired of those annoyingly persistent collection agents.

In Connecticut, the fee for filing an application for an adult name change is a mere $150. You’ll need a certified long form birth certificate (it will not be returned to you, so don’t send the only one you have). You’ll also have to complete a sworn affidavit stating that “[t]he purpose of the change of name is not to deceive, defraud, or mislead any person or governmental agency, nor to avoid the legal consequences of a criminal conviction.”

I did have a man with a criminal past who, against my advice, did file for a name change. The judge later told me that the man had a ‘record’ a mile long and when asked about it, he simply shrugged it off as youthful misadventure. The judge denied the application.

I had a client who came to me for assistance in filing her name change. She had been raised in the foster care system and had used the first name she had been given by the state agency as a child (to protect her privacy). When she applied for a job that required security clearance, she was asked why she used an alias. She was embarrassed to admit that she never knew she had been given a different first name at birth. It was a legitimate reason to change her name, given that she was engaged to be married in a few months.

Finally, another guy successfully changed his very common name to a more interesting name that was some type of hybrid cross of various martial art forms. Unfortunately, he later got in trouble with the law and will never be able to change his name back. Moral: think before choosing a new name. You might be stuck with it for life.

For assistance with Probate name changes, you should contact a licensed attorney.

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Family Wages Legal Battle Over Control of Etta James’ Fortune

Irene C. Olszewski, Esq. — Mon, 24 Jan 2011 19:13:22 +0000

72-year old Etta James, the famed jazz singer most known for the classic, At Last, was diagnosed with advanced dementia and leukemia. She is in need of total care and is unable to sign her own name. Her husband of 41 years, Artis Mills has asked the court to add his name to her sole bank accounts because California is a community property state. He claims that he needs control of the money in order to provide care for Etta at home rather than in a nursing home. Her son, Donte James (born to a different father), wants to see his mother cared for at home as well; but he wants someone independent to manage her funds.

The issue is that Etta signed a Power of Attorney in 2008 naming her son, Donte, as the person to manage her affairs in the event of her incapacity. Under the law, the execution of the Power of Attorney would control and the husband would not be able to control her million dollar fortune. Mills is claiming that Etta was not mentally competent in 2008 to have signed the document. Her sons believe otherwise.

This is a perfect example of why proper legal documents are important in every person’s life. You never know what’s going to happen and if you want some say in who will manage your funds and other aspects of your life if you are unable to do so, you must plan ahead.

A Power of Attorney is an important legal document that helps to protect you while you are alive. You might also seriously consider executing Advance Directives (a Living Will) in the event that you suffer a medical emergency or terminal condition in the future and want to direct how your medical providers will handle life support and comfort measures. A Last Will and Testament (Will) gives you the final say over the disposition of your property upon your death.

It is wise to consult with a licensed attorney to discuss the legal documents of protection available and to determine what documents suit your individual situation. Don’t wait until it’s too late.

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Connecticut’s New Probate Districts

Irene C. Olszewski, Esq. — Fri, 21 Jan 2011 17:47:01 +0000

As most of you are aware, Connecticut made significant changes to its Probate System. There are now 59 Probate Districts, scaled down from 117. This includes 5 Regional Children’s Courts.

It has been a bit confusing for some people, so I’d like to point you in the right direction if you need to determine which Probate District you now fall under:

2011 Directory of Probate Judges and Districts (.pdf)

Map of Probate Districts (.pdf) (effective January 5, 2011)

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Judge John W. Cooney Retires as Manchester’s Judge of Probate

Irene C. Olszewski, Esq. — Tue, 11 Jan 2011 02:58:29 +0000

I had the honor of attending the retirement dinner for Judge John W. Cooney on Saturday afternoon at the Manchester Country Club. Judge Cooney served as Manchester’s Judge of Probate for 17 years. He was an exemplary jurist who was respected by judges and lawyers alike.

Judge John W. Cooney with Attorney Irene Olszewski

When I first opened my solo practice, an attorney in my office building told me that he was resigning from some of his Probate case appointments and suggested that I take the cases. I didn’t have any experience in such matters and told him so. He offered to mentor me if I took the cases and that seemed like a fine – if not slightly scary – idea. I had no idea at the time how lucky I would be to have my first taste of a Probate Court hearing in front of Judge John Cooney.

I recall walking into his courthouse feeling a bit nervous. I introduced myself to his staff, and was greeted warmly. That was a good start, I thought. When the judge entered the courtroom, I rose to my feet as I had been taught to do when a judge takes the bench. He smiled at me and told me there was no need for me to stand for his “entrance” — but that my show of respect had been appreciated. Judge Cooney knew I was “green” as a Probate lawyer and made every effort to guide me through the process with patience and kind words. He became an invaluable mentor – not just to me, but to dozens of other young lawyers who were just starting Probate practice. During the celebration in his honor, I heard lawyers say time again that Judge Cooney was responsible for teaching them how to practice Probate law competently and fairly.

The Judge was always a “real” human being. He never allowed his position of judicial power and authority to get in the way of his compassion or sense of judgment. If you brought a case before his court, you knew in advance that whether or not you liked the result, he would always issue a fair and well-reasoned decision. I heard several of my colleagues say that it was always a relief to know your case would be heard by Judge Cooney.

Those of us who practiced before Judge Cooney remember with great fondness his ability to lighten the tense and frightening moods, especially when children were involved. He became the master of creating origami art using dollar bills. When a child was a “guest” in his courtroom, he would always ask the child if he or she wanted a special souvenir … then he’d proceed to wow that child by making a jumping frog or a ring or some other creation.

During his farewell speech on Saturday, the Judge spoke of having quit smoking several years ago. He estimated that in his 17 years on the bench, he would have spent an around $41,000 on cigarettes. Instead, he only spent $7,100 in dollar bills used for his origami projects. Yes, folks, those were real dollar bills he gave away all those years! In fact, there were at least four origami souvenirs on each of the dinner tables on Saturday! I personally came home with a frog.

Mayor Spedaccini presented the Judge with a special Town Proclamation … in the shape of a crane with wings that could actually flap!

Judge James Purnell served as the emcee for the celebration. As John Cooney’s long time friend and colleague, he offered several amusing and heart warming anecdotes. The program included several wonderful speakers. Even newly elected United States Senator Richard Blumenthal made a special appearance at the event.

Attorney Irene Olszewski with U.S. Senator Richard Blumenthal

Those who had the honor and privilege of serving the Honorable John W. Cooney’s court will miss him deeply. He was truly an inspiration to each of us and his legacy will remain in that hallowed building forever.

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Probate Estates … What to Do After the Funeral

Irene C. Olszewski, Esq. — Sat, 20 Nov 2010 05:19:43 +0000

I receive a lot of calls from people whose spouse just died and they are confused about what to do after the funeral. Most often, I hear from people who were told by the funeral director that they should contact a lawyer to help them with the Probate estate.

“But my wife had a Will,” they explain. “Doesn’t that mean I don’t have to do anything with the Probate Court?” The short answer is “no.”

When a person dies, the Probate Court in the town where the person resided at the time of death has jurisdiction over that person’s property (known as the decedent’s estate). If the decedent left a Will (Last Will and Testament), it must be submitted to the court within 30 days of the person’s death. It is the court’s job to oversee the division of that property among the people that are legally entitled to it and to be sure that person’s wishes are properly carried out.

If the decedent did not leave a Will, the court will oversee the distribution of his or her property according to the laws of intestacy (in other words, according to the State’s Probate Statutes).

The Court also ensures that any debts left by the decedent, as well as funeral expenses and taxes, will be paid prior to the distribution of any assets owned by the decedent.

There are specific procedures that must be followed and it is important for the surviving spouse not to give away or sell any assets belonging solely to the decedent without first obtaining a decree from the probate Court.

If you are unsure how to go about handling a decedent’s estate, you are wise to consult an attorney with knowledge of the Probate protocols and procedures.