As estate planning and elder law attorneys, we are intimately connected to the probate court. One of the major functions of the court is to provide supervision when an estate is being administered.
If you use a last will to express your final wishes, you name an executor in the document. This estate representative would take care of the hands-on tasks, and the probate court would provide oversight.
During probate, creditors must be notified, and they are given a certain amount of time to come forward seeking satisfaction. Rightful debts must be paid, along with final taxes. The executor will establish a bank account on behalf of the estate, and he or she will identify and inventory the assets that will eventually be passed along to the inheritors.
All of this can take a considerable amount of time, especially if there are complications. A simple case that goes smoothly will pass through probate in about eight months to a year. The heirs cannot receive their inheritances during this interim, so the waiting game is not a very pleasant one.
This time consumption is one of the factors that is not positive for the heirs, but there are others. Probate is a public proceeding, so the records are available to anyone that has an interest. This loss of privacy is not very comforting in a general sense, but the information can potentially cause hard feelings among people that were close to the deceased.
Plus, probate offers a window of opportunity for anyone that wants to challenge the validity of a will.
Since there are certain pitfalls that go along with probate, you may want to take steps to avoid it when you are engaged in the estate planning process. A revocable living trust can be a good alternative to a will because assets in the trust can be distributed outside of probate. This is one benefit, and there are others.
The condition of intestacy exists when someone passes away without any estate planning documents at all. Under these circumstances, the probate court would appoint a personal representative to act as the estate administrator. After everything is in order and debts are paid, the assets would be distributed under the intestate succession laws of the state of Connecticut.
Guardianship
It is not the most pleasant information to convey, but elder law attorneys advise clients to prepare for possible latter life incapacity. Everyone has heard of Alzheimer’s disease, but many people are surprised when they find out that over 30 percent of elders that are 85 years of age and older have contracted the disease. Alzheimer’s is a looming threat, but it is not the only cause of incapacity among octogenarians.
If you do nothing to prepare for this eventuality, the probate court could be petitioned to appoint a guardian to act on your behalf. The person that is empowered may not be the individual that you would have chosen yourself when you were of sound mind.
You can prevent a guardianship proceeding and take the matter into your own hands in advance if you execute the appropriate incapacity planning documents. With a durable power of attorney for health care, you can name agents to make medical decisions on your behalf. A durable financial power of attorney can be added to appoint a financial representative.
On the subject of guardianship and estate planning, if you are the parent of a dependent child, you should name a guardian in your estate plan. Unfortunately, far too many young adults fail to execute any estate planning documents at all. While it is true that the odds are in your favor if you are in your 20s, 30s, or 40s, you never really know what the future holds.
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Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.