The Honorable Lisa Wexler, Westport/Weston Judicial District Judge, gave an overview of probate court activities. She prefaced her remarks by stating that the court strives to be understanding and helpful, which is particularly important as many of the individuals that appear before, or petition probate court do so without the aid of an attorney.
Judge Wexler said that one of the primary functions of her probate court is to handle the probating of estates. She indicated that approximately 30%-40% of estates come before her without the benefit of a will. In these instances the court will appoint an individual to act as executor to carry out the managing and distribution of the estate. In addition to the more straightforward administrative tasks involved in probating an estate, the court handles any problems that arise. Examples of additional problems are heirs that don’t get along with each other, or have complaints about the estate executor.
Probate court also handles issues concerning mental health proceedings. Judge Wexler stated that she is usually at the local mental health facility 2-3 times a week. She deals with issues such as compelling the taking of medication and instituting involuntary commitment to a mental health hospital in appropriate cases. Judge Wexler also pointed out that the probate court is charged with the responsibility of taking away guns from those individual who are deemed mentally incapable of possessing them.
Another probate court responsibility is the appointment of guardianships for special needs children. This is frequently complicated by divorce of the parents of a special needs child especially when that child reaches a majority age, but is still incapable of handling it’s own affairs.
Other responsibilities that fall into Judge Wexler’s purview are adoptions, name changes, disease quarantines and the overseeing of trusts established by a deceased person’s will if her court is requested to oversee such a trust.
Judge Wexler indicated that she has instituted some practices connected with her judicial responsibilities that she feels are beneficial. One is to provide for CDs that contain the transcript of court hearings so these are more readily available to interested parties. Another is conducting public seminars on probate law and probate court procedure so there is a wider understanding of what is involved in probate and its processes.
Questions and Answers
Q. What happens if adult children die without a will?
A. The law dictates that the estate assets will go to the nearest living relation to the deceased starting with the spouse, then children, then parents and so-on. The management of this is done by a court appointed person who is likely to be a stranger to the decedent and the heirs. It is all spelled out by statute. It is much better to have a will that appoints an executor. Then the assets will be distributed according to the wishes of the decedent and the process managed by someone trusted by the decedent. And if you make a will use a lawyer so it is done correctly and avoids problems.
Q. Who needs a trust?
A. This depends on the amount of assets involved and the situation. Trusts are usually created to avoid probate. To be effective the assets must be transferred to the trust before death. If the trust is revocable the transferred assets will still be taxed to the estate. If the trust is irrevocable and has been reported to the IRS at the time the assets were transferred before death the assets will not be taxed as part of the estate.
Q. Can a will be filed with the probate court?
A. Yes, but you still have to prove that it is the last will made by the decedent.
Q. What about co-executors that don’t agree on the management of an estate?
A. I try to resolve such disagreements when they can’t do it themselves and if that proves to be impossible then I can remove them as executors and replace them with someone else.
Q. How should you choose who should be your executor?
A. Most frequently, it is the spouse; if not the spouse then a child if the rest of the children are fine with the selection. Often the person who lives nearest is a logical choice, but it always depends on the situation and circumstances.
Q. Can you have a will that doesn’t go through probate?
A. Yes, when all the title to assets occurs automatically such as when everything is jointly owned, but there will still be taxes to pay.
Q. Is there a fee structure for executors?
A. Not in Connecticut, but I recommend that executors keep a diary of their hours spent on the estate and then apply a reasonable rate for the hours spent. What is reasonable will depend to some degree on how complicated the estate turns out to be.
Q. What is your jurisdiction?
A. Westport and Weston unless I am asked to sit in for another judge in another district.
Q. Are your rulings appealable and what do you do to enforce your rulings if people don’t comply?
A. My rulings are appealable. If people don’t comply with my orders they can be held in contempt of court and enforcement action taken by police.
Q. What is the cost of probate?
A. There are fees associated with probate. They vary depending on the size of the estate. For the most part Connecticut probate fees are not considered too high. This might be in contrast to the estate taxes charged by Connecticut.
Q. Did your P&Z Board experience help with your current position?
A. I think all experience is beneficial so it did in some regard.