Why do I need a Will?

If you die without a Will, property standing in your name alone, or which passes to your estate by beneficiary designation (“probate assets”), will be distributed in accordance with a “one size fits all” set of laws called the laws of intestacy. These statutes dictate to whom your probate assets will pass if you die without a Will. Therefore, if you want to direct the distribution of your probate assets in accordance with your own wishes, and you wish to name the person or persons who will be responsible for handling your affairs after your death, you must do so in a properly drawn and executed Last Will and Testament.

If I have a Will drawn and executed in another state, do I need a new Will now that I live in Connecticut?

Wills drawn and executed in other states which still meet your current needs and desires usually do not need to be redrawn in Connecticut, but you should have a Connecticut attorney review your Will, Power of Attorney, Living Will and/or other health care directives in order to insure that they achieve your objectives under Connecticut law. If your Will or other documents are outdated and do not meet your current needs, moving to a new state is a good time to make needed changes.

Do I need a new Will if I have been divorced?

Under current Connecticut law a divorce automatically revokes any provisions in a Will executed after January 1, 1997 that would benefit a former spouse and distributes such property as if such former spouse had predeceased the Testator. A divorce revokes a Will executed on or after October 1, 1965 and prior to January 1, 1997 unless the Will specifically provides for such contingency. If your Will does not address this contingency, your Will should be reviewed and updated to meet your current wishes.

Can I appoint guardians for my children?

Either by Will or a separate instrument, you may designate whom you wish to be the guardian or guardians for your minor children, both as to their persons (personal decisions concerning their care) and as to their estates (financial affairs). In considering whom you may wish to fulfill these extraordinarily important roles, you should think about their age, competence, willingness to serve, and their availability. Alternate guardians can be named should your first choice not be willing or able to serve.

What is a Trust? Do I need a Trust?

A Trust is a document that permits you to establish a fund to be administered over a period of time for the purposes and in accordance with terms as you direct. The “manager” of the fund is the Trustee whom you name. Trusts are commonly used for such purposes as providing for the long term financial needs of yourself or other family members, for your care if you become disabled, for the care of other disabled individuals for whom you want to make provision, to avoid the necessity of probate administration, and for estate planning to minimize the impact of so-called death taxes payable upon you or your spouse’s death.

What is an Executor? What is a Trustee? Who should they be?

An Executor is a person designated in a Will to handle the administration of a decedent’s estate. A Trustee is a person designated in a Will to handle the administration of a trust created under a decedent’s Will, or the person named in a document separate from the Will often called an Inter-Vivos (Living) Trust. If the Executor or Trustee named in the Will or Inter-Vivos Trust is unwilling or unable to accept appointment, or, after appointment, fails for any reason to act and no successor is named in the instrument, a Probate Court will appoint a successor as provided by law. An Executor or Trustee is also commonly referred to as a fiduciary.

An Executor or a Trustee can be an individual, two or more individuals serving together, and/or an institution such as a bank or trust company. It is your decision whom you wish to name to those positions. Most people name relatives or close friends whom they deem to be well suited to handling administrative duties and in whom they have great trust. Others may prefer the professional expertise of a bank, trust company or other trusted financial advisor.

What should I consider in choosing someone to be my Executor or Trustee?

The position of Executor or Trustee is a position of high trust and responsibility. It is also a demanding and time-consuming job. You should consider the following about a prospective appointee:

1. Will the fiduciary have management and financial expertise commensurate with the size and complexity of the estate, or will the help of others (financial advisors, accountants, etc.) be needed?
2. Will the fiduciary be impartial and loyal to all the beneficiaries and be knowledgeable about the needs of the beneficiaries?
3. Will the fiduciary want to serve in this role? Does the fiduciary have the time (often for a period of years) to devote to the job?
4. Will the fiduciary expect to be compensated for the services which are to be rendered?

Do I need to have specialized tax planning?

The vast majority of individuals do not need specialized tax planning because most estates fall below the threshold amounts where tax planning becomes an important consideration. However, for those persons who have estates that do exceed those amounts, tax planning must be considered because the savings of taxes payable from your estate or the estate of your spouse may be very substantial. Frequent changes to the state and federal estate, gift and income tax laws may also impact your decision as to your need for tax planning.

What is a Living Will? What is an Appointment of Health Care Representative? What is a Durable Power of Attorney? What is a Designation of Conservator?

Part of the estate planning process entails consideration of issues such as disability and health care planning which includes certain documents that are operable during your lifetime.

A Living Will allows you to direct that so-called “heroic” methods not be used to prolong your life or to direct what measures you do want provided and in what manner.

An Appointment of Health Care Representative enables you to name the person or persons whom you wish to convey to your physician your wishes concerning the withholding or removal of life support systems and to name the person or persons whom you wish to make health care decisions for you when you are unable to make them for yourself.

A Durable Power of Attorney allows you to designate the person or persons to whom you wish to grant legal power over your affairs, defines the nature and extent of those powers, and provides for the circumstances under which those powers become effective. Those powers can be “durable” in that they will continue to be effective even after you are deemed to be legally incompetent to handle your own affairs.

A Conservator is a person appointed by a Probate Court to handle the affairs of one who is unable to care for one’s self and/or to manage one’s financial affairs. A Designation of Conservator allows you to designate the person or persons whom you want a Probate Court to appoint to handle your personal and/or financial affairs in the event you are unable to do so and someone petitions to be appointed your conservator or a conservator otherwise needs to be appointed by the Probate Court to handle your affairs.

What information do I need to provide to my legal advisor?

Complete information about your assets, liabilities, and family demographics are needed in order for your legal advisor to fully understand your circumstances and to offer specific and accurate counsel to you. If you are able to bring this information to your estate planning conference, or, even better, if you can supply the data to your legal advisor prior to your conference, a great deal of time on their part (and hourly charges to you) can be saved.

What should I think about before my estate planning conference with my legal advisor?

Before your estate planning conference, consider the following:

1. Have I provided complete and accurate information to my legal advisor?
2. Whom do I wish to name as my Executor, as the Guardian of my children, or as my Trustee?
3. To whom do I wish to leave my property?

Do not expect to have all the answers! Even if you do not have all your information available or cannot answer all the questions, schedule an appointment with your legal advisor. Your legal advisor can help you review the issues and provide guidance to you in your decision making process. It is far more risky to not have a Will, or have a Will that does not meet your current needs, than to further delay the process of estate planning. So, if you haven’t already done so, call your legal advisor now!

USAGE DISCLAIMER: Recipients should not act on any information contained herein without consulting with legal counsel. The attorneys at Moran, Shuster, Carignan & Knierim, LLP are licensed to practice law in Connecticut. Readers from other jurisdictions are urged to consult legal advisors from their jurisdiction.
IRS CIRCULAR 230 DISCLAIMER: Tax advice, if any, contained within this article is not intended to be used, and cannot be used by any taxpayer, for the purpose of avoiding Federal tax penalties that may be imposed on the taxpayer.