Planning for the Small
Estate in Connecticut

Individuals with small estates should take care to have the basic estate planning documentation to insure a smooth transition of affairs to your heirs and loved ones. The basic planning vehicle for taking care of your affairs after death is a Will. A Will, however, will only take care of your affairs in the event of death. Planning should be undertaken for the event of incapacity. Even for persons of modest means, a simple plan of a (1) Will, a (2) Power of Attorney and (3) Combined Living Will/Appointment of Health Care Agent/Appointment of Conservator will cover most contingencies.

All of the documents described in this article are relatively simple to prepare and can be done so inexpensively by many qualified attorneys.

           Simple Will | Power of Attorney | Living Will

Simple Will. A Will contains your wishes as to how you want your estate distributed after your death and who you want to administer the estate (executor).

• Recently enacted legislation, The Connecticut Uniform Transfers to Minors Act, Conn. Gen. Stats. 45a-557 to 45a-560b allows for the appointment of a custodian who is authorized to supervise a child's inheritance until age 21. It is now relatively simple to insert a short provision in the Will creating a simple trust for children. More elaborate trusts are recommended for children with special needs, children who should not receive property at age 21 or for large estates.

A Durable Power of Attorney or a Springing Power of Attorney allows another person (your "Attorney in Fact") to take care of your financial affairs should you become incapacitated. The statutorily required form is part of Connecticut's "Short Form Power of Attorney Act," Conn. Gen. Stats. Sec. 1-42, et. seq.

• When a power of attorney contains the language of durability it becomes effective immediately and it will remain in effect if you become incapacitated allowing for an efficient way to take care of your financial and other affairs.

• A springing power comes into effect when you become incapacitated and is ineffective until a determination of incapacity is made.

• A simple durable or springing power of attorney can replace the function of the more expensive Inter Vivos or "Living" Trust in smaller or simpler estate plans.  For large estates or a special needs situation, a Living Trust may be advisable.

• A simple durable or springing power of attorney can avoid the necessity and delay of applying to the probate court in the event of incapacity. Although establishing a probate court conservatorship is more time consuming and requires more paperwork, in some circumstances the supervision of a probate court judge may be advisable.

• Beware that pre-printed forms may not conform to the statute or contain the necessary language to make a power of attorney durable or springing. Unless expressly provided, the power of attorney will be automatically revoked if a person becomes incapacitated. (Under all circumstances, the power is nullified by the appointment of a conservator by the probate court).

Combined Living Will/Health Care Agent/Designation of Conservator. The legislature has approved a combined statutory form allowing for the various pre-death provisions. The form is usually referred to as a "Living Will" but it covers a number of functions, including (1) designating your wishes for treatment in the event of a terminal illness, (2) designating the person you would like to act as your agent in carrying out those wishes, (3) who you would like to be appointed as your conservator should the need arise, (4) who you would like to be the custodian of your remains after death and (5) whether you would like any anatomical gifts made. The statutory provisions and forms are included at Conn. Gen. Stats. §§ 19a-575 and 19a-575a.

• The Living Will contains "advanced directives" as to how you would like to be managed medically should you become terminally ill with no hope of regaining consciousness. Options are withdrawal of nutrition, hydration and life support. Read the Conn. Atty. General's Comments on Living Wills.
   

• The statutory Health Care Agent is appointed to carry out your wishes concerning important health care decisions; i.e., the withdrawal of life support. The standard power of attorney can also authorize your Attorney in Fact to make these important decisions, Conn. Gen. Stats. § 1-54a, although someone appointed under a power of attorney cannot override the wishes expressed in a statutory Living Will drawn up in accordance with §§ 19a-575 to 19a-575a. To avoid confusion or conflict, it is recommended that you provide for both an Attorney in Fact and a Health Care agent and they should be the same person. The role of the health care agent is to carry out your directions as set forth in the living will and not to make discretionary decisions on his own.
  

• Advance Designation of a Conservator. By naming a conservator in advance, you can streamline the probate court process in the event of incapacity. You can also relieve your conservator of the burden of obtaining a bond.
   

• Anatomical Gifts can be specified (as to type of donation, whether donations for research are allowed and to whom the donations should be directed).
   

• You can also insert a provision to designate a custodian of your remains. This provision is especially helpful in situations where an unmarried significant other or partner is not legally entitled to make funeral and burial decisions. Conn. Gen. Stats. § 45a-318. Designation of a custodian may also be helpful if you anticipate a family dispute.

Last rev. April 9, 2002. Copyright Susan K. Smith 1996-2002

Did you know? A subsequent divorce revokes the provisions of a will as to the former spouse  C.G.S. 45a-257c. A will executed before a marriage will be reformed by statute to provide for the subsequent spouse. C.G.S. 45a-257a.  Similarly, a will executed prior to the birth or adoption of children will be reformed to provide for them. C.G.S. 45a-257b. All of these will-saving provisions have exceptions. The effect of these statutes can be negated by language in the will.

Did you know? A living will is technically known as an "advanced directive."

Table of Contents

Simple Will

Power of Attorney

"Living Will"

Recommended Links:

Official Probate Court Forms

Official Probate Court Website

Connecticut's Probate Statutes (Rev. 2003)

Official Guidelines for the Administration of Estates in Connecticut

Senior Law Page: Elder Law, Medicare, Medicaid, estate planning, trusts and the rights of the elderly and disabled

An Adult Education "Crash Course" in Wills and Trusts by Attorney Michael T. Palermo

Nolo Press Legal Encyclopedia: Wills, Trusts, Estate Planning

Recommended Books:

Estate Planning Made Easy: Your Step-By-Step Guide to Protecting Your Family, Safeguarding Your Assets and Minimizing the Tax Bite. by David T. Phillips, Bill Wolfkiel