This is the first article of the Know Your Estate Plan series.  In this piece I will cover some of the common questions people have about the Executor and Trustee positions.

The Executor is the person or company responsible to administer the instructions contained in your Last Will and Testament.  In practical terms, there are almost no requirements to qualify as an Executor other than that the person be eighteen years of age or older.  The Executor can even be in a different State.  In many cases, the person you nominate as Executor will be approved by the Probate Court without incident.  However, anyone interested in the Estate will have an opportunity to object to the nominated Executor and may persuade the Probate Court to reject the nominated Executor if there are concerns about financial responsibility or trustworthiness.

The Executor of an Estate will be required to secure a bond in an amount determined by the Probate Court.  You can excuse this requirement for bond in your Will.  The bond requirement exists to provide any beneficiaries wronged by the Executor’s actions an opportunity to recover some or all of their loss.

Now that we know what an Executor is, what does an Executor do?  In general terms, the Executor collects all of the Estate’s assets, pays the Estate’s debts, files the required tax returns, and then distributes the remaining assets in accordance with the terms of the Will.  The Executor has significant control over the administration of the Estate.  Many Wills grant the Executor broad discretion on certain matters.  The Executor can exercise that discretion, although they are not permitted to substitute their own judgment for what is embodied in the Will.  The Executor has a full plate, is yours up to the task?

A Trustee is responsible for many of the same duties as an Executor.  One important difference is that in many cases a Trustee is not under the active supervision of the Probate Court.  In this situation, it is even more important that someone you trust is in the position of Trustee.

How do you choose an Executor or Trustee?  The advice I give my clients is to choose someone you trust, someone that is responsible, and someone that understands your goals.  The Executor or Trustee is responsible for your property upon death or disability, it is only reasonable that you have a certain comfort level with them.

In addition to your own comfort level, consider the other beneficiaries that will be depending on the Executor.  This is particularly important in second marriages where a step-parent may be in control of a step-child’s inheritance and some children may be uncomfortable with that arrangement.  You may trust your second spouse entirely, but do you want to risk your children hauling your spouse into court all the time because of petty arguments when a more sensible arrangement may be available?  If you can not settle on an Executor or Trustee that everyone is comfortable with, you can consider an independent fiduciary to fill those roles.  It may cost more in dollars and cents, but it may also save your family a lot of headaches and argument.

Now that you know the basics of the Executor and Trustee positions, check your documents and see who you’ve put in those positions.  In many cases the Executor of a Will is nominated in the very last Article or near the end.  Trustee nominations can be found anywhere in a trust document, but it should be clearly identified with something to the effect of “Appointment of Trustee” as a title.

Now that you know who you have appointed to the positions of Executor and Trustee, you are already ahead of the game.  Some people I meet with bring in documents for me to review and are surprised when the attorney that drafted the document appointed themselves or their law firm as a fiduciary when they don’t remember agreeing to such an arrangement.  That is a big red flag to me.  In other cases, people have designated parents that are no longer fit to serve as Fiduciary or other individuals that may have become estranged since the documents were originally drafted.  Make sure your Executor and Trustee appointments reflect your goals today and get them updated if they do not.

“Are you a specialist?”

This question comes up fairly often as an attorney. The medical profession has an extensive established and well-defined structure for specialization. It is natural to assume and hope that a similar structure would be implemented in the legal profession. Unfortunately in Connecticut, there are some big gaps in legal specialization.

As of today, the Connecticut Bar has only completed recognition of five areas of law. These areas are:

Civil Trial practice;
Criminal practice;
Business bankruptcy;
Consumer bankruptcy;
Worker’s Compensation.

Obviously, that only scratches the surface of the many areas that attorneys concentrate their careers in. You’ll notice Elder Law and Estate Planning are nowhere to be found on the list of recognized specializations.

Since the Connecticut Bar does not recognize many specializations, the question “are you an elder law or estate planning specialist?” becomes something of a loaded question. As defined by the Connecticut Bar, no I am not an estate planning or elder law specialist and neither is any other attorney in Connecticut.

From a client’s perspective it is natural to expect a yes or no answer to this simple question. It is also natural to seek out an attorney that can answer “yes” to the specialization question. Unfortunately, the Connecticut Bar has put many attorneys in the position of trying to explain to potential clients why they must answer “no” to this seemingly simple question and immediately create doubt in the potential client’s mind.

If you are reading this as a consumer of legal services, certainly ask this question to the attorney you are considering working with but I encourage you to take this information into account when you receive your answer. If an attorney is not a specialist because the Bar does not recognize a particular specialization, consider the attorneys experience and knowledge with your type of matter. If you now know the Bar does not recognize a particular specialization and an attorney does claim to be a specialist in that field, ask yourself if they are being candid with you.

For additional information on Connecticut’s recognized legal specializations, click here.

Connecticut Probate has a reputation, and it is not very good. From the scandal involving Judge James Kinsella in the 1980s to systemic flaws that have been slowly revealed as the legislature began to unravel the Probate onion in recent years. Here are a few stories discussing some of the common issues with our Probate system.

Channel 8 News Report
Another Channel 8 News Report
Yale Law School Commentary

We’ve been fortunate and have not had any large scale probate scandal in recent years that I’m aware of. Although as you can see from the articles, the vulnerabilities remain and the next scandal could come any day.

You may be one of many worried about the financial issues of mental incompetence, obligations of caring for a disabled relative, or providing a residence and care for the physically incapacitated. If you are a principal income producer and you become incompetent or incapacitated for any reason, a drastic and involuntary financial adjustment in your family structure will occur. If long term public or private institutionalization is required, your property may be depleted (or you may have to expend all or almost all of your own assets) before you will be eligible for governmental or public aid.

None of these are pleasant thoughts. But you must face these and other issues before it is too late and many important planning options are lost. To preserve and protect both your property and your dignity, you must act now! If you are interested in these problems and their solutions keep reading.

THE LIVING WILL: If you were unconscious or incompetent or for any other reason were unable to make your own decisions regarding health care, who, if anyone, would you want to make such decisions? A so called Living Will may be part of the solution.

A Living Will (often called an Advance Directive for Medical Care) is a document that expresses the desire that when death is imminent, loss of mental capacity is substantial, incurable, irreversible, inevitable, and with no hope of recovery extraordinary, artificial, life sustaining techniques should not be used to prolong life. A Living Will coupled with other documents your attorney can draft for you is certainly part of the way to express your desires.

THE HEALTH CARE POWER OF ATTORNEY: A durable power of attorney for health care has been authorized in Connecticut by specific law. A health care power of attorney is broader and more flexible than a living will since it provides for many types of health care decisions other than those regarding life sustaining treatment. It allows you to appoint an agent, someone to make any and all health care decisions on your behalf in the event you are unable to make your own except to the extent you provide otherwise. You, of course, continue to make decisions as long as you are able to do so. You can refuse any health care treatment merely by objecting and can revoke the authority you give to your agent orally or in writing. A health care power of attorney is sometimes used in addition to a Living Will or may be broad enough to take the place of a living will.

THE DURABLE POWER OF ATTORNEY: A power of attorney is a relative simple and inexpensive legal document by which you give a spouse, child, or other relative or someone else (the attorney in fact ) the right to act in your place on your behalf with respect to financial matters. You can make this power as broad or as narrow as you wish. A well drawn durable power of attorney is for many people as important as a will. It may negate the need to petition a court to have a guardian or conservator appointed to handle your assets if you can’t. A durable power of attorney is a “must” if you are currently suffering from a physical disability or illness that could lead to permanent or long term incapacity but should be considered even by healthy individuals who would like to provide for continuity of management of assets if for any reason they can’t manage those assets or handle their own affairs for a period of time.

THE REVOCABLE LIVING TRUST: In order to avoid the costs, publicity, and complications of probate administration upon death or disability, many people use a revocable living trust to enable them and their family to keep control as long as possible. The trustee you select assumes the responsibility of investing, managing, and conserving the property on your behalf and for your other beneficiaries if you should become incompetent. A revocable trust allows you to change your mind and regain property that you have put into the trust or change the terms of the trust.

THE CHOICE IS YOURS! You can choose to take action now and keep control or you can choose to hesitate and let federal and state laws and fate control you and your loved ones.