Estate Administration & Probate

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

What is involved with Probate?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.  In addition the Probate Courts in Connecticut issue documentation to enable the sale of real property, ensure the proper amount of probate fees and taxes are paid, if applicable, ensure the proper administration of the will and of testamentary trusts, and provide a venue for the resolution of disagreements with creditors, beneficiaries and other parties.

The probate process usually involves the following steps:

• Filing of petition with the proper probate court
• Notice to heirs under the will or to statutory heirs (if no will exists)
• Petition to appoint Executor (in the case of a will) or Administrator for the estate
• Inventory and appraisal of estate assets by Executor/Administrator
• Payment of estate debt to rightful creditors
• Sale of estate assets
• Payment of estate taxes, if applicable
• Final distribution of assets to heirs

Certain types of assets are “non-probate assets” and do not go through probate to pass title.  These include:

• Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate
• Retirement accounts such as IRA and 401(k) accounts where there are designated named beneficiaries
• Life insurance policies where there are designated named beneficiaries
• Bank accounts with “payable on death” (POD) designations
• Property owned by a living trust.  If not all of the decedent’s assets are owned by the trust there may be assets requiring probate court administration

Can I avoid Probate Court by titling assets?

Probably not entirely. In connection with decedent’s estates the probate courts in Connecticut generally serve to 1) see to the orderly administration of estates including the distribution of probate assets passing under a will or the laws of intestacy, and, 2) see to the payment of estate taxes and probate fees and costs. You may be able to avoid 1) but not 2). Even non-taxable estates need to file a form showing no taxable estate for approval by the probate court. Whether or not the court is involved to transfer title or the assets go directly to the named beneficiaries, the court will still be involved to receive and review tax returns and to issue evidence of no tax due or satisfied. Additionally, recent legislation requires a release of lien for probate fees and costs from the probate court. The question of titling assets and structuring probate and non-probate assets is something to consider but ultimately the decision should depend on your personal planning objectives.

Other considerations – Trusts in your Will and the Probate Court

If you have a will and want your beneficiaries to have the benefit of but not the legal title or responsibility for their funds, you can create a trust and name a trustee to make decisions. Trusts created in a will are called testamentary trusts. At death, assets may pass into a trust, for example, for the benefit of minor children until a certain age or conditions are met. Since the trust was created under the will the probate court has continuing oversight which may include requiring the trustee to provide periodic accounting of trust expenditures or surety bond which may help protect the funds of trust beneficiaries.

What can affect the time and expense of Probate?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a will and the location of real property owned by the estate.  Also certain events can extend the customary time to settle an estate, for example, if the will is contested, if there are disagreements between the beneficiaries, if there are contested claims against the estate, or there is difficulty selling assets that need to be sold before the estate can be distributed.  Common expenses of an estate include Executor’s fees and administration expenses, attorneys’ fees and costs, probate court fees and accounting fees. If applicable, there may be appraisal and surety bond costs.  The estate settlement process can proceed more quickly and efficiently if the executor/administrator/surviving spouse is organized and provides accurate and prompt information and ongoing records. Most estates are settled through probate in about 10 to 18 months, assuming there is no litigation involved.