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Frequently asked questions about Probate PDF Print E-mail

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Frequently asked questions about Probate:

When someone dies, the probate court supervises distribution of the person’s property, payment of any outstanding debts, funeral expenses and taxes, regardless of whether the person left a will or not.

If there is a will, it is the executor’s responsibility to see that the terms of the will are carried out. The Connecticut Supreme Court holds executors liable for the decisions they make.

If there’s no will – referred to as “dying intestate” – the probate court appoints an administrator – usually the surviving spouse, a family member or a creditor – to pay the expenses and claims of the estate and distribute its assets according to state laws. The court doesn’t allow for guessing who the deceased person “would’ve wanted” to inherit their money.

It is the executor’s/administrator’s fiduciary responsibility to oversee the following probate process:

  1. If there is a will, it must be filed with the probate court within 30 days of the person’s death – along with any amendments to the will (“codicils”), an application for administration, the names and addresses of the deceased person’s (“decedent’s”) immediate family members, as well as all beneficiaries named in the will. The court decides whether or not the will is valid. If anyone wants to challenge the will, or the court deems it necessary, a formal hearing is held. Once the court determines the will is valid, the executor is officially appointed.
    If someone dies without a will, by law, all assets will be distributed to the decedent’s heirs – “next of kin” immediate family members.
  2. Secure, collect and control all estate assets – by placing or transferring them into an account in the estate’s name, and closing any accounts that won’t be used. Real estate – and the insurance on the property – must be secured. Investments must be prudently managed, since the executor/administrator is personally liable for any loss that takes place during this process.
  3. File a notice for land records with the town clerk – if the decedent was sole owner of any real estate in Connecticut. The executor/administrator is responsible for proper maintenance of the property to prevent any damage.
  4. Itemize and appraise an inventory of all assets – including their respective fair market values on the date of the decedent’s death. Any mortgages owed should be included on the list.
  5. Prepare to pay all estate debts and expenses – including funeral and burial, taxes and other claims. The executor/administrator should estimate these costs in advance. Surviving dependents may apply to the court for an allowance and to keep a decedent-owned family vehicle. If the estate does not have enough cash to pay out all of these expenses, the executor/administrator will have to liquidate assets, per court guidelines.
  6. Notify all possible creditors to file their claims against the estate. Within 14 days after the probate process begins, the court publishes a notice in the local newspaper, instructing any creditors to file their claims promptly. The executor/administrator must also notify possible creditors by certified mail, giving them the opportunity to make a claim. All claims are checked for validity and paid in order of preference – for example, taxes, funeral costs and medical bills are paid before creditors. A surviving spouse may be liable for any debt. If the estate is unable to settle all valid claims, the court can declare it insolvent and switch to a different settlement procedure.
  7. Pay estate taxes and file final income tax return within six months of the decedent’s death. Federal Estate Tax should be paid to the federal government and, if the state is valued at more than $3.5 million, a Connecticut Estate Tax should be paid to the state. If the decedent owned property in other states, there may be taxes due there, too. Any income taxes that accumulated prior to the person’s death must also be paid.
  8. File the final account – declaring the estate’s total assets on the date of death, income earned/collected, debts, taxes, fees, probate court costs paid, and remaining assets to be distributed. The court holds a hearing on the final accounting, unless everyone waives this right.
  9. Distribution of assets to beneficiaries – upon court approval of the final account and according to the terms of the will. No will? The estate’s administrator distributes the assets according to Connecticut’s laws of intestacy.
  10. File the closing statement – with the probate court and within 30 days of the court’s decree on the final account. Any appeals must be filed in superior court within these same 30 days.

If the deceased person was the sole owner of less than $40,000 in assets and had no solely owned real estate, there’s no need to go through the formal probate process.

After the estate pays all of its claims and expenses, the court will distribute any remainder according to the laws of intestacy (i.e., to the heirs) – unless there is a will that directs a different distribution. In that case, the heirs must waive their right to contest the will to enable the court to distribute the estate according to the will.

A guardian’s duty is to monitor the care of an adult with intellectual disabilities who has been determined by the probate court to be unable to meet their essential personal health and safety requirements, and make informed decisions about them.

A guardian is appointed and supervised by the probate court. A guardianship can either be plenary or limited.

Plenary – which means full, complete, unlimited – guardians supervise all aspects of the adult’s care because of the severity of the person’s intellectual disability and total inability to perform these duties for him or herself.

Limited guardians supervise only certain specified aspects of the adult’s care, if the probate court determines the person is able to manage some of their own daily health and safety requirements and decisions.

Testamentary guardians are appointed by parents of minor children in their wills in the event of their death. This type of guardian is charged with raising the minor child until age 18.

When the probate court determines that an adult is incapable of managing his or her personal care and/or assets, the court appoints a conservator to safeguard the rights and best interests of this person (the “conserved person”).

There are two types of conservators – “conservator of the person” and “conservator of the estate.”

A conservator of the person supervises personal needs, such as health care, hygiene, food, clothing, shelter, maintenance, and care of personal effects.

A conservator of the estate supervises the person’s financial affairs. This includes taking an inventory of the person’s assets and making sure all bank accounts are transferred into the conservator of the estate’s name. All income must be sent directly to the conservator, who must periodically account to the court.

A conserved person may need both types of conservators. One person may serve as both, or two people can be appointed separately. Hospitals and nursing homes are not allowed to serve as conservators; banks can only serve as a conservator of the estate (not of the person).

There are also temporary, voluntary and involuntary conservatorships of the person and/or estate.

A temporary conservatorship lasts a maximum of 60 days, unless an application for involuntary conservatorship is filed while the temporary conservatorship is in effect.

A voluntary conservatorship can be requested by a person who is capable of handling his or her own affairs or care, but may want another person to manage them.

An involuntary conservatorship of the person/estate can be appointed after someone successfully presents to the court medical and other relevant evidence of an individual’s incapacity to manage their own care/estate.

A guardian is appointed to handle the affairs of a minor or an adult with intellectual disabilities who has never been able to handle his or her own affairs.

A conservator handles the affairs of an adult who has been declared incapable of handling his or her own affairs, usually due to illness or injury. Guardians and Conservators are supervised by the probate court.

 

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Kearns & Kearns
1121 New Britain Avenue
West Hartford, CT 06110
Phone: 860.233.1281
Fax: 860.523.5774
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