Estate Planning

It is the scariest part of life, that one day we will pass away. We all hope that our wishes for how things should proceed after we pass will be honored, but this is not always the case. The best way to provide clarity, and avoid problems, is to have an appropriate estate plan. An estate plan allows a person to do things such as:

• Name a guardian of their minor children;
• Name beneficiaries of assets;
• Name an executor or executrix (the person who acts on the instructions in the will);
• Reduce taxes and costs in the handling of your estate, so that assets are preserved for beneficiaries.

Whether you are 25, 45 or 65, it is important to have an estate plan that considers all the important parts of your life and develops a plan to best suit your needs.

Wills and Trusts

A will is the method that allows a person to express their wishes for what should happen after a person passes away. A well-crafted will serves as a road map to ensure that what you want to see happens, even after you pass away. A will allows you to express your wishes as it relates to:

• • Beneficiaries of assets held in your estate;
  • Guardians of minor children;
  • Management of businesses;
  • Executor appointments;
  • Disposition of personal property;

A will is the best way to avoid confusion, anger and potentially costly fighting amongst family who are trying to act after your passing. Often times, people will create a trust as a method to further develop their goals expressed in a will. Trusts can be revocable or irrevocable and can help to qualify for Medicaid benefits, preserve assets while qualifying for benefits, or simply provide for more complex distributions of assets than what a will is able to do. I recommend that every adult have a will of some kind. Wills can be very simple, or highly complex, depending on the needs of the individual. The best wills are wills that clearly and simply express your intentions in a way that grows with you as your life changes. Trusts are a great tool in an estate planning lawyer’s tool box, but are appropriately used in only some scenarios. Both wills and trusts come with a number of potential issues that require careful consideration of all the risks and benefits.

Power of Attorney and Health Care Directives

A power of attorney designation and health care directives regarding medical decisions are methods that are used by individuals to delegate authority to make decisions in certain circumstances. A power of attorney can have broad authority to handle some or all of the following tasks:

• • Banking transactions;
  • Investments;
  • Real estate;
  • Business interests;
  • Applying for benefits and entitlements;

  When you execute a power of attorney, you are allowing another person the authority to transact on your behalf. Often times they are used when a person is elderly and is unable to handle things like in person banking transactions. They can be used to allow a person to have authority to speak with an investment company by phone and request records. They can be used to allow for authority to handle applications for benefits and entitlements. A health care directive is similar to a power of attorney, in that it delegates authority, but the health care directive applies to medical decision making. The health care directive can address issues such as end of life decisions, organ donation and the appointment of a conservator in the case of incapacity. Having a health care directive is a great way to clearly express your wishes for a time when you are not able to express them yourself.

Special Needs Trust

A special needs trust can be used as a way to provide for the needs of a person who may be disabled and receiving benefits from the government. When an individual is receiving government benefits and they inherit money, this money can be legally applied to repay the “debt” of the individual to the government. A special needs trust is a method of allowing for a person to obtain the benefit of the funds in specific ways, while remaining eligible for services. It is an important piece of an estate plan if you have a disabled child.

Decedent’s Estates

When a person passes away, they are known as the “decedent” in Probate Court. A person who passes away can do so either testate (with a will) or intestate (without a will). If a person has a will, the holder of the will is required to present the will to the Probate Court in the town the individual lived in within 30 days of his or her passing. A specific application is filed, and information regarding assets, family, and the will itself if there is one is included. Once a person has an estate opened and a fiduciary appointed (A fiduciary can be an executor, executrix, administrator or administratrix) that person now becomes responsible to the Court to complete all tasks relating to the Estate. This includes, but is not limited to, filing an inventory, disposing of personal property, sale or division of real estate, filing all necessary tax forms with the probate court, state and federal entities, processing claims from creditors, determining priority of claims of creditors, and disposing of assets while creating a final accounting for the probate court to review. All of these tasks need to be completed in a specific order, and within a specific time frame. For example, an inventory must be filed with the probate court within 60 days of the appointment of a fiduciary. Often times the best way to ensure that you are completing all these tasks efficiently and effectively is to hire an attorney to assist. Generally speaking, the attorney can help you as much or as little as you need to complete the tasks. If you are truly a beginner, hiring an attorney who understands this process can save time, money and stress.

Conservatorships

Conservatorships in Connecticut are the process through which a Probate Court removes the liberty rights of an individual and gives them to a third party after making a finding that a person suffers from a mental or physical impairment that negatively impacts their ability to manage their own affairs. More simply put, a court concludes that a person isn’t able to do what they once could on their own and appoints someone to take over. A conservator is similar to a power of attorney, except for a number of key distinctions:

• A conservator is appointed by a court, a power of attorney is appointed by the individual;
• A conservator may supersede a power of attorney in some cases;
• The appointment of a power of attorney in advance of an incapacity may preclude the appointment of a conservator in some cases;
• A conservator is subject to the oversight of the probate court from the date of appointment to the date of death, or restoration. This includes filing accountings, obtaining approvals to relocate an individual, sell real estate, dispose of personal property or make significant decisions on medical issues.

There is a specific procedure for filing a conservatorship in Connecticut. The application requires medical evidence, to be completed within a certain amount of time of the filing of the application. The application requires notice to all family members and will lead to a hearing being held at the local probate court to determine whether or not a conservator is appropriate. An attorney is appointed to represent the person who is the subject of the application. Many times the petitioner (the person filing the application) also hires an attorney to present their case. Conservators can be appointed for a wide range of reasons, but most often, it occurs as a person becomes elderly and is no longer to physically or mentally manage as a result of a condition such as a mental condition such as dementia or Alzheimer’s, among others. In some cases, a conservator can be used with younger individuals who suffer from mental illness or have developmental disabilities that warrant the assistance of a third party. Conservatorships can also be voluntary, meaning that a person delegates decision making authority similar to a power of attorney but with court approval, while retaining the ability to revoke this power at a later date. Conservatorships can also be temporary, meaning that they last for a short period of time, usually a period of incapacity. The court can appoint a family member as conservator, or can appoint an independent third party (usually an attorney) to serve as conservator. A conservator can have a wide range of power, including but not limited to:

• Managing finances and paying bills;
• Managing real estate;
• Managing investments;
• Applying for programs and benefits;
• Managing caregivers / care plans;
• Determining residence;
• End of life decisions;

I have been involved in over 1000 conservatorships, serving as attorney for the petitioner, attorney for the respondent (the person being conserved), as well as serving as the conservator. Every conservatorship is different and comes with unique challenges such as managing the specific care needs of the individual, working with families in what is often tense circumstances, managing assets large and small, applying for and receiving appropriate benefits and understanding the proper structuring of assets to maximize eligibility while protecting assets for the conserved individual. Once a person has an estate opened and a fiduciary appointed (A fiduciary can be an executor, executrix, administrator or administratrix) that person now becomes responsible to the Court to complete all tasks relating to the Estate. This includes, but is not limited to, filing an inventory, disposing of personal property, sale or division of real estate, filing all necessary tax forms with the probate court, state and federal entities, processing claims from creditors, determining priority of claims of creditors, and disposing of assets while creating a final accounting for the probate court to review. All of these tasks need to be completed in a specific order, and within a specific time frame. For example, an inventory must be filed with the probate court within 60 days of the appointment of a fiduciary. Often times the best way to ensure that you are completing all these tasks efficiently and effectively is to hire an attorney to assist. Generally speaking, the attorney can help you as much or as little as you need to complete the tasks. If you are truly a beginner, hiring an attorney who understands this process can save time, money and stress.

Medicaid Planning

Medicaid planning, in its simplest terms, is the process where an individual starts to, or completes the process of becoming eligible for Medicaid, with the goal of receiving benefits that allow for a person to be cared for in the later years of their life when they would otherwise be unable to afford it. Medicaid planning requires you to consider and understand the following:

• Your health and the health of your spouse, if you have one;
• The status of your real estate, if you own any;
• The titling of your bank accounts, investment accounts and any other financial instruments, as well as the form of the account itself (401K, annuity, brokerage account);
• Your age and the age of your spouse;
• The likelihood that you or your spouse will need care in the future;
• The total resources you have at your disposal to provide for care;
• Whether you have assets such as life insurance, long term care insurance, or a prepaid funeral account.

In my time working with Medicaid planning, there are generally two types of clients. The first type of client is the client that is seeking advice in advance as part of a larger estate plan. This client usually looks to set up a will, appoint a power of attorney and health care representative, may transfer property, may create a trust and funds a pre-paid burial account, as well as working with financial planners to make sure investments are appropriate and lined up with Medicaid requirements. This client is aware of the 5 year look back period that Medicaid mandates as it relates to transactions and is looking to proactively protect assets. The second type of client is the client who is dealing with a Medicaid application at that exact moment, usually for a mom or a dad, or both, who has seen a decline in condition that requires them to have a higher level of care, either a nursing home or extensive home care. This client needs help with application, as well as obtaining the supporting documents and organizing them in a way that allows the worker assigned by the government to complete the review to be able to grant the case in a timely manner. Deadlines on these applications are severe and short term, so it is important that this client is able to stay up to date and is active in this process. I have completed hundreds of Medicaid applications on behalf of clients and have personally processed highly complex and challenging applications on behalf of my clients, either as the attorney assisting them or their conservator. I have also represented clients in hearings to attempt to overturn penalties assessed as part of the Medicaid process. The challenging work with the second type of client I described has given me unique experience to advise my clients who are the first type of client I described to avoid the potentially pitfalls of the process.

Probate Litigation

In a perfect world, there would not be conflicts in the matters that come before a probate court. However, we all know that is not the case! Often times it is necessary to retain an attorney to represent your interest in contested matters in probate court. These matters can include:

• Challenging or defending a will;
• Challenging a conservatorship application;
• Filing a conservatorship;
• Requesting a power of attorney accounting;
• Challenging the actions of a conservator;
• Seeking to be restored from a conservatorship;
• Financial exploitation

I have handled hundreds of contested matters around Connecticut and am accepting new cases and referrals for contested matters. The unique nature of each probate court as well as the complex areas of law require that an experienced probate attorney handle your case.