Friday, December 28, 2018
Lafayette executed a will in 1997 leaving his musical instruments and equipment to a friend. He left the rest of his estate to his brother, James.
In 2004, Jim established - in Connecticut Superior Court - that Lafayette was his father. Lafayette had no knowledge that Jim was his son until it was established in court. Once paternity was established, the Court ordered Lafayette to pay child support for Jim because Jim had not yet reached 18.
Then Lafayette died in 2007. One month after he died, Jim filed an application to administer his father’s estate with the Windsor Probate Court. Jim did not know that his father executed a will in 1997, so he filed an application for an intestate estate. One week later, Lafayette’s brother - James - filed the 1997 will and an application to administer his brother’s estate as a testate estate.
For more on this topic go to https://bmre.us/paternity
Monday, November 12, 2018
Choosing the Right Fiduciary to Administer Your Estate in New London County
It’s important to choose the right people to carry out your intent under a will. Your will appoints an executor who is the person you’ve chosen to wind up your estate at your death. You may also appoint a trustee under a will or a trustee under a Revocable Trust. A Trustee manages assets for a beneficiary of your property. Often, the executor and the trustee can be the same person but it doesn’t have to be that way. You can name two different people to serve in those capacities. What happens if you make the wrong choice and the person you’ve chosen is unable to perform his duties as your fiduciary? See More
Saturday, November 10, 2018
In 1993, Suzanne executed a will that left 50% of her estate to her son – Dan – and 50% to her granddaughter, Nicole. Suzanne began to suffer from hallucinations in 1995. Approximately one year later, Suzanne executed a power of attorney authorizing Nicole to handle her real estate transactions. At the time, Suzanne owned a home in New London. Everyone knew that she was executing this power of attorney in favor of her granddaughter.
A couple of days after she executed it, Suzanne was admitted to the hospital with hallucinations. While at the hospital, a doctor diagnosed her with mild senile dementia. Several months later, Nicole sold Suzanne’s home for $150,000 and purchased a condominium in Waterford for $100,000. Title to the condominium was in the name of Suzanne and Nicole’s mother (Darcy) as joint tenants with rights of survivorship. Suzanne remained in the condominium until her death five years later.
After Suzanne’s death, Darcy became the sole owner of the condominium. Dan sued Darcy as well as Nicole. In that lawsuit, he asked the court to impose a constructive trust on the condominium and any cash left over from the sale of Suzanne’s home in New London. Dan claimed that Darcy and Nicole intended to deprive Suzanne’s estate of its principal asset (the house in New London) and as a result, he lost out on his 50% interest in his mother’s estate. At the heart of Dan’s claim was that Suzanne lacked the mental capacity to knowingly execute her power of attorney.
At trial, several witnesses testified to Suzanne’s mental capacity. One of the witnesses was the doctor who treated her when she was admitted to the hospital. That doctor testified that after Suzanne was admitted, he diagnosed her with mild dementia. Also, after reviewing her medical records, the doctor testified that in his opinion, she suffered from moderate stage Alzheimer’s Disease. Nevertheless, he also testified that Suzanne’s situation was fluid and that she could be lucid at times. Finally, the court considered the records of the visiting health care providers who rendered care to Suzanne in the months leading up to her admission to the hospital. Those records indicated that Suzanne experienced occasional hallucinations and moments of confusion.
In deciding Dan’s case, the court cited to another case for the proposition that there is a presumption of sanity in the performance of legal acts. The court then stated that the medical evidence offered by Dan fell short of overcoming this presumption and concluded that he failed to prove his mother was incapable of executing her power of attorney. Since the court found that Suzanne had the capacity to execute her power of attorney, that meant that Nicole was properly authorized to sell the home in New London and purchase the condominium in Waterford.
The issue of capacity is one that comes up in my practice over and over again. The burden of proving a lack of capacity is onerous and difficult. Every case stands on its own facts. Ultimately, a court must determine whether someone has the capacity to execute a legal document and this determination is done with the understanding that there is a presumption in favor of capacity.
At Cipparone & Zaccaro, PC, we have a good deal of experience handling disputes over the use of a power of attorney. If you have questions related to capacity, please don’t hesitate to give us a call. We’d be happy to analyze the facts of your case and advise you according to the law.
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Sunday, October 28, 2018
Wednesday, October 24, 2018
According to the Connecticut Probate Court Users Guide the first step is to file Probate of Will, form PC-200, within 30 days of the decedent’s passing .
Where to file: according to the Connecticut Probate Court Users Guide the first step is to file Probate of Will, form PC-200, within 30 days of the decedent’s passing . The Southeastern CT Regional Probate Court (PD30) is located in the Groton Town Hall at 45 Fort Hill Road. PD30 covers probate for the towns of Groton, Ledyard, Stonington and North Stonington. PD29 is located at City Hall, 100 Broadway, Room 122, in Norwich. It covers covers probate for Voluntown, Griswold, Lisbon, Sprague, Franklin, Bosrah, Preston and Norwich. The Niantic Regional Probate Court (PD32) is located at 118 Pennsylvania Avenue, in Niantic, CT and covers probate for the towns of Montville, Salem, East Lyme and Old Lyme. New London Probate Court (PD31) is situated at 181 State Street, Room 2, New London, CT and covers probate in Waterford and New London. For more information go to https://bmre.us/probaterules
Step 2 in the Probate process in southeastern Connecticut is for the fiduciary to take possession of the decedent’s property. For more information go to https://bmre.us/probaterules
Step 3 in the Probate process in southeastern Connecticut concerns decedent owned real estate. It must be filed as a Notice for Land Records/Appointment of Fiduciary, on form PC-251, within two months of appointment as fiduciary. For more information go to https://bmre.us/probaterules
Step 4 in the Probate process in southeastern Connecticut is to file the inventory on form PC-440, within two months of an appointment as fiduciary. For more information go to https://bmre.us/probaterules
Step 5 in the Probate process in southeastern Connecticut is to obtain cash for estate administration as needed. The fiduciary should anticipate the cash needs of the estate to pay for administration expenses, taxes, claims and bequests. He or she has the authority to convert into cash any personal property not specifically bequeathed but must obtain permission from the Probate Court to sell, mortgage or otherwise convey real estate, unless specifically authorized to do so under the terms of the will. For more information go to https://bmre.us/probaterules
Step 6 in the Probate process in southeastern Connecticut is to follow statutory procedures for the payment of claims against the estate, and file Return of Claims and List of Notified Creditors, PC-237, at the required time. For more information go to https://bmre.us/probaterules
Step 7 in the Probate process in southeastern Connecticut is to file the tax returns and pay any applicable taxes. Taxes payable as a result of death include the federal estate tax, which is reported to the federal government on federal Form 706, and the Connecticut estate and gift tax, which is reported to Connecticut on Form CT-706/709. For more information go to https://bmre.us/probaterules
Step 8 in the Probate process in southeastern Connecticut is to file the final financial report or account. It usually occurs within 12 months of the decedent’s death. For more information go to https://bmre.us/probaterules
Step 9 in the Probate process in southeastern Connecticut is the most anticipated, distribute assets to all of the beneficiaries. For more information go to https://bmre.us/probaterules
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