On February 10^th of this year the Connecticut Banking Commission introduced a bill to the Connecticut Legislature entitled An Act Concerning the Protections of Elderly Persons from Actual or Suspected Financial Abuse.

          What does this Bill say?  Subsection (b) of the Bill states the following:

·       If a financial institution or any of its employees has reasonable cause to believe that a transaction or disbursement involving an account of an elderly person may involve, result in or contribute to the financial exploitation of an elderly person, then the financial institution may delay - or even refuse – to execute the transaction or disbursement.

In the Statement of Purpose under the proposed legislation, the drafter of the Bill states that this legislation is for the purpose of protecting elderly persons from actual or suspected financial abuse. 

On the face of it, this Bill seems well-intentioned.  After all, the title of the Bill is An Act Concerning the Protections of Elderly Persons from Actual or Suspected Financial Abuse.  However, if this Bill were to become law, it could have the effect of negating certain provisions in the Uniform Power of Attorney Act that lays out a process that should be followed by a financial institution, when refusing to accept a Power of Attorney.  So rather than follow the procedure laid out in the Uniform Power of Attorney Act for deciding whether to accept a Power of Attorney, this proposed legislation would give the banking industry more discretion in determining whether to accept or refuse someone’s Power of Attorney.  So this legislation could lead to a situation where someone’s Power of Attorney is not given effect when in fact, that may not have been what the principal intended.

What does the Uniform Power of Attorney Act say in this regard?

§ 1-350s(a)(1) of the Connecticut General Statutes states that a person – such as a financial institution or its employee - shall either accept an acknowledged Power of Attorney or request a certification, translation or an opinion of counsel, not later than 7 business days after it is presented for acceptance.  Subsection (a)(2) of that statute states that if a person requests a certification, translation or an opinion of counsel, then the person shall accept the Power of Attorney not later than 5 days after receiving it.  And subsection (a)(3) of that statute states that a person may not require an additional or a different form of the Power of Attorney.  These are the protections afforded financial institutions when it comes to accepting Powers of Attorney.

The only time a financial institution is not required to accept of Power of Attorney is when the principal under the Power of Attorney is not eligible or qualified to enter into the transaction with the financial institution; the transaction itself is inconsistent with state or federal law; the financial institution or employee has actual knowledge of the termination of the agent’s authority under the Power of Attorney; a request for certification, translation or an opinion of counsel is refused; the financial institution/employee has a good faith belief that the Power of Attorney is invalid; or the financial institution/employee has actual knowledge that someone has made a report to an entity - like the Department of Social Services - that the principal may be subject to some sort of physical or financial exploitation at the hands of the agent.  CGS § 1-350s(b)(1 – 6).  The bottom line is that these are the procedures that financial institutions must employ when deciding whether to accept or reject a Power of Attorney. 

I submit that H.B. 7029 seeks to do an end run around the current law and to broaden the powers of the Banks, by giving them the ability to refuse every “elderly” customer access to their own money.  The question is, do we want to give financial institutions this kind of power or are the protections under the existing law sufficient? 

The last thing that is worth mentioning is that under the current law, if a financial institution refuses to accept a valid Power of Attorney, that financial institution is subject to an order from a court that mandates the acceptance of the power of attorney and the court may award reasonable attorney’s fees and costs incurred to the party who prevailed in seeking the enforcement of the Power of Attorney.  CGS § 1-350s(c).  The proposed legislation would effectively grant immunity to financial institutions from any civil, criminal or administrative liability that might otherwise exist for delaying a transaction or disbursement or for refusing to execute a transaction or disbursement with the use of a Power of Attorney. 

So does this legislation seek to protect elderly persons from actual or suspected financial abuse?  Or is the banking industry seeking to broaden its powers and absolve itself from any responsibility for refusing to honor Powers of Attorney under the proposed law?  The Legislative Committee of the Connecticut Bar Association is urging the Elder Law Section to oppose the Bill.  Stay tuned.

While the vast majority of Wills pass through probate without problems, it is hard to predict whether a family member will challenge your Will upon your death. Any “interested party” - anyone who could potentially gain or lose something if the will is carried out as written - can contest a Will. A Will contest  can drag out the probate process and cost your estate thousands of dollars. Fortunately, there are things you can do to make it more difficult for someone to contest your Will.

State the Reason for a Reduced Share in a Letter of Intent

If you are leaving someone out of your Will or if you are giving that person a reduced share of your estate (as compared to another beneficiary), write a letter of intent to your Executor stating the reason why that person is receiving nothing or a reduced share.  Delve into as much detail as you are comfortable divulging to explain the disposition of your estate. Make sure the attorney drafting the Will reviews the letter of intent. Keep the letter of intent with your Will. 

Include a No Contest Clause in the Will

Another strategy to avoid a Will contest includes a “no-contest” or “in terrorem” clause in your Will.  A typical “no-contest” clause states that if an heir challenges your Will and loses, then he or she gets nothing.  Whenever our estate planning attorneys include a no contest clause, we typically advise leaving the heir enough of a gift so that any challenge they make to the Will  would not be worth the risk of forfeiting the gift under the Will. Read my article “Avoiding Will Disputes with ‘No Contest’ Clauses”  for more information on what a “no contest” clause is and how they work.

Obtain a Physician’s Evaluation Report

One of the most common grounds for challenging a Will is for the person challenging the Will to argue that the testator was mentally incompetent at the time of signing the Will.  To avoid a Will contest, the testator can visit with a doctor - preferably a psychiatrist, geriatrician or psychologist - to complete a competency evaluation report.  While this strategy is admittedly difficult, expensive and time-consuming, there’s nothing like a report from a psychiatrist  to show that the testator was competent.  Obviously, such an examination and report should be performed during the same time period the Will is being written and signed.   

Videotape the Will Signing

A video recording made during the actual Will signing can go a long way toward proving that you signed your Will freely and voluntarily. It would also be powerful for you to explain in your own words the reasoning behind the disposition of your estate. Yet, videotaping does entail some risks. The video can inadvertently show that the testator lacked capacity or another person unduly influenced the estate plan. Any practice sessions with the attorney would be subject to discovery in court. Consequently, this strategy is rarely used except when the testator (the signor of the Will) is clearly competent and comfortable in front of a video camera.

Keep Intended Beneficiaries Away from the Preparation and Signing of the Will

In order to avoid a Will contest, you should do everything in your power to remove any appearance of undue influence, not only while the Will is drafted but especially when it is signed.  That means you should not involve anyone who stands to inherit under the Will during the drafting and execution process.  In other words, do not have any beneficiary of the Will present when (i) the structure of the Will is discussed with the attorney drafting the Will, (ii) you travel to the attorney’s office, or (iii) you sign the Will. 

Avoid Using a Will to Transfer Your Property 

The best strategy to avoid a Will contest is to avoid formal probate. How do you avoid formal probate? Here are some ways you can do that: 

1. Give property during your life to the intended beneficiary while you are clearly independent and competent. 
2. Have beneficiary designations for all of your investment accounts, retirement accounts, and retirement plans. 
3. Put real estate in a trust or hold it with the intended beneficiary as Joint Tenants with Rights of Survivorship. 
4. Assign tangible personal property like artwork, jewelry, coin collections, antiques, and other such property to a trust.  
5. Designate the beneficiary of your car on the back of your car registration. Own your valuable boat jointly with its intended beneficiary. 

Avoiding formal probate will mean the Will controls no property. If the Will controls no property, then disgruntled heirs will have nothing to fight over.  With nothing to fight over, your executor will simply file an estate tax return, distribute the property to the intended beneficiaries and close the estate.

Ultimately, you should consult with an experienced estate planning attorney to help you draft your Will and prepare your estate plan.  The attorney will know the best way to protect your estate and he or she can advise you on strategies to make your estate plan as rock-solid as possible.  If you have questions about how best to avoid a Will contest, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC.  

A diagnosis of Alzheimer’s Disease can send you and your caregivers reeling. Not only are there many things to learn about the disease and the many services you may need but you will have financial concerns to address. As soon as you can, focus on gathering information and weighing your options. Here is a list of the top 11 things to do financially after you receive a diagnosis of Alzheimer’s Disease:

Investigate the Cost of Alzheimer's Care

Explore the costs of in-home care, assisted living facilities, and nursing homes in your area. The cost of Alzheimer’s care largely depends on the level of care needed at the time. Typically, Alzheimer’s care costs between $5,000 and $7,000 a month in a Connecticut assisted living facility. Considering the average Alzheimer’s patient lives between 8 and 10 years, you may spend over half a million dollars on your care. See our Senior Services Guide for information about nursing homes and assisted living facilities in Southeastern Connecticut.

Find the Public Programs that Benefit You 

Now that you have a diagnosis, you may qualify for many government programs to assist you and your family.  Visit Senior Resources, the Area Agency on Aging, to determine what programs could assist you and what are the eligibility criterion. Read Chapter 3 of our Senior Services Guide for a list of federal and Connecticut programs and visit with an elder law attorney to discuss the programs and how to qualify for them. Join the Alzheimer’s Association and participate in their support groups to find out what is available.  

Create a Small Joint Checking Account  

A small joint checking account will allow your trusted spouse, child or friend to pay your day-to-day bills.  What is “small?” We advise $20,000 as an initial amount in the joint account. As the bills mount, it will help to have another person who can keep your bills current. 

Consider Transferring Your Assets to an Irrevocable Trust 

If you do not need public benefits, you can put your assets in a trust for the benefit of your family with an independent Trustee like a close friend, a bank, an attorney or an accountant.  By creating an Irrevocable Trust, you will no longer have the responsibility of managing your assets. Your Trustee will have the duty to manage your property as a prudent investor and provide for your care until you die.  The trust document controls who will receive your property and in what manner upon your death. Visit with an elder law attorney to determine if transferring your assets to an irrevocable trust is right for you. 

Consider Transferring Your Assets to Your Spouse

If you will need public benefits to provide for your care and you trust your spouse to act in your best interest, consider giving your property to your spouse. That way as you decline, your spouse will have full power to manage the family finances. Transferring your assets to your spouse will not help you obtain Medicaid (Title 19), but it will protect your assets from those who prey upon the disabled and it will simplify your estate upon your passing. Visit with an elder law attorney to decide whether to transfer your assets to your spouse.   

Have Your Spouse Sign a Community Spouse Will

If your spouse dies, you probably do not want the family’s property consumed by the cost of your care. How do you avoid that result?  By having your spouse sign a Will that creates a trust for you and a trust for your children.  Because of a Connecticut case called Skindzier v. Commissioner of Social Services, neither testamentary trust will render you ineligible for Title 19 (Medicaid).  Thus, you can receive public benefits and preserve the family assets.  The income from the trust for you can provide for your care.  One of your children will serve as Trustee of each trust and will thus manage the property as Trustee. 

Sign a Durable Power of Attorney

If Alzheimer’s renders you unable to sign documents and make financial decisions, you will not be considered legally able to implement your financial decisions. By signing a Durable Power of Attorney, you confer on another person the power to sign financial documents for you even if you become too sick to do so. 

Consolidate Accounts  

You may have multiple brokerage accounts and stocks held in street name or in a dividend reinvestment plan (DRIP). As your Alzheimer’s progresses, diversification and saving brokerage fees are no longer a major concern.  Consolidating all of your investments into one brokerage account will greatly simplify your financial life and ultimately your estate. 

Organize Your Insurance & Retirement Documents

Loved ones spend a lot of time hunting for long-term care insurance policies, life insurance policies, and health insurance information. They often need to find annuity contracts and IRA beneficiary designation forms. Assembling all of those documents before your dementia renders you unable to do so will make your caregiver’s job much easier.

Find Important Government Documents 

Assemble your social security card, birth certificate, marriage certificate, naturalization papers, green card, and DD-214 military discharge papers.  You may be the only one who knows where they are kept because they may have been issued 50 or more years ago. As your Alzheimer’s progresses, you may have less capacity to find them. 

Confirm all Beneficiary Designations in Writing 

Most people designate beneficiaries when they set up an account.  It is common for people to set up the account 10 or more years ago and have no idea who you designated as beneficiary.  Now is the time to confirm who is to receive the assets from your various accounts   and change them if they do not conform to your current estate plan. 

Prepay Your Funeral

There are no public benefits program to pay for your funeral. If you do not want to burden your family with your funeral costs, visit a funeral home and purchase a prepaid funeral contract.  

As your Alzheimer’s progresses, you will need more and more assistance from others. Only by planning and taking action now will you rise to the challenge of  managing the financial consequences of Alzheimer’s Disease. As you can see from this list of financial steps to take, an elder law attorney can help with much more than just wills and trusts. An elder law attorney can help you identify and qualify for government assistance, help with financial planning and help with transferring assets. Call our law firm today at (860) 442-0150 to learn more about how we can help you.

When it comes to annual estate planning, we must consider both estate taxes and gift taxes. In this article, we discuss gift taxes for 2017. You can learn more about the estate taxes for 2017 here(1).

2017 Annual Gift Tax Exclusion

The annual federal gift tax exclusion for 2017 has not changed from 2016 and remains $14,000. If a person makes gifts of $14,000 to 4 different people, none of the gifts are considered taxable by the federal government. Additionally, none of them have to be reported on a federal gift tax return.  

In 2017, you can split gifts with your spouse so the two of you can leave a total of $28,000 to each person to whom you’d like to give money. However, if you split a gift with your spouse, you must report the split gift on Form 709 (federal gift tax return). 

The annual exclusion for gifts to non-citizen spouses is not the same as the annual exclusion for gifts to U.S. citizen spouses.  Gifts to citizen spouses qualify for the unlimited marital deduction so you can leave all your assets to your spouse tax free Gifts to non-citizen spouses do not qualify for the unlimited marital deduction. To compensate for the lack of a marital deduction for non-citizen spouses, the annual exclusion for gifts to non-citizen spouses is higher than the regular $14,000 annual exclusion. In 2017, the annual exclusion for gifts to non-citizen spouses is $149,000. 

Lifetime Gift Tax Exclusion

In addition to the annual exclusion, each person also has a lifetime gift tax exclusion.  In 2017, the lifetime gift tax exclusion is $5.49 million dollars.  The lifetime gift tax exclusion is the total amount that can be given away by an individual over his or her entire lifetime to any number of people that will be free from gift taxes. If you give away any amount of your lifetime gift tax exclusion, then this amount will be subtracted from your estate tax exemption when you die. For example, if an individual makes taxable gifts (i.e. – gifts above the annual exclusion) of $3,000,000 over her lifetime and the individual dies in December 2017, then the individual's federal estate tax exemption will only be $2,490,000. In other words, $3,000,000 in lifetime gifts is subtracted from the 2017 federal estate tax exemption of $5,490,000, which only leaves $2,490,000 of the exemption.

Thus, by applying some of your lifetime gift tax exclusion, a gift with a value in excess of the $14,000 annual exclusion will result in no gift tax owed but you must file a Form 709 with the IRS.  When you die, your estate tax exemption will be reduced by the amount of the gift over the annual exclusion. 

The lifetime gift tax exclusion is the same for U.S. resident non-citizens and U.S. citizens. Thus, in 2017, you can make taxable gifts of up to $5,490,000 to a non-citizen above the annual exclusion and pay no gift tax. You will have to file a gift tax return, however.

The federal gift tax rate is 40% for the amount above the lifetime gift tax exclusion which means above $5,490,000 in 2017. 

Connecticut Gift Tax Exclusion

Connecticut’s annual gift tax exclusion is the same as the federal government’s annual gift tax exclusion: $149,000 for non-citizen spouses and $14,000 for everyone else. Connecticut has a different lifetime gift tax exclusion, however.  In 2017, the Connecticut lifetime gift tax exclusion is $2,000,000.  

For example, if you are not married and you give $50,000 to each of your 2 children, you will have to file a Connecticut gift tax return even though no gift tax is payable.  You will use up $72,000 of your lifetime Connecticut gift tax exclusion but owe no gift tax. It is calculated as follows: ($50,000 x 2) – ($14,000 x 2) = $72,000. You will need to file a Connecticut gift tax return (Form CT-706/709).

Federal and Connecticut gift tax returns are due by April 15 of the year following the gift.

If you need help preparing a gift tax return, you want an estate planning attorney to estimate the gift taxes owed, or you want an attorney to prepare a trust that uses your lifetime gift tax exclusion, please give our law firm a call at (860) 442-0150. 

First, what does the term “undue influence” mean?  

Undue influence is a term that means persuasion exercised by one or more people over someone else, to bring that person to the point of signing a Will, a Trust or a Deed that does not truly represent how that person would want to see their property distributed when they die.  Put another way, undue influence is the exercise of control over someone else to interfere with the disposition of their assets.  In essence, it is influencing someone else to do something that they would not otherwise do.

It is long-settled law in the State of Connecticut, that in order to prove that someone unduly influenced someone else, you have to show four things:

1. There must be a person who is subject to being influenced;
2. There must have been some opportunity to exert that undue influence;
3. The person alleged to have done the influencing must have had some disposition – or motive – to exert the undue influence; and
4. There must be some result indicating the undue influence.

Undue influence usually comes into play when a person is both elderly and ill.  

The typical fact pattern is one where you have an elderly person who is either dependent upon someone else or vulnerable to being manipulated by someone else and the person doing the manipulation, stands to benefit financially from that dependency or vulnerability.  The influencer usually manipulates the victim into doing something – such as drafting a Will, a Trust or a Deed – in which the person doing the manipulation stands to inherit money, property or other assets that they would otherwise not inherit, if the victim were not vulnerable to being manipulated.

If the influencer is not closely related to the person who died and had a confidential relationship with that person, a legal presumption of undue influence may operate. This presumption can lead to probate disputes, especially when immediate family members are excluded from the Will. 

The existence of a confidential relationship sufficient to trigger a presumption of undue influence can grow out of a variety of circumstances. Attorneys, financial advisers, business associates, clergy, nurses, and other professionals most often possess the necessary kind of relationship. That they have influence over the testator and the Will may simply reflect the exercise of their professional duties. The more difficult question is whether their influence is "undue."

The presumption of undue influence is rebuttable by proof of testamentary intent consistent with the disposition under the Will. The court will hear evidence of the testator's mental condition, the terms of the Will, and the circumstances surrounding its execution.

If you suspect that a family member has been the victim of undue influence and would like to protect your rights, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC.  

Attorneys spend several hours preparing customized Wills, Trusts, and Durable Powers of Attorney. But do they prepare a flow chart that shows where assets will go under their client's estate plan?  Some attorneys summarize key provisions for their clients. Yet, these carefully crafted estate plans lack any basis in reality and your assets might not go to the individuals as planned if there is no flow chart outlining the details.  In this post, I explain how a flow chart can prevent this unintended consequence. 

Here are a few examples of when assets might not go where they are intended to go:

1. If one child is designated as the beneficiary on a retirement plan, but the Trust says all assets are to be divided equally between all the children, guess what will happen?  In this situation, the Trust provision is irrelevant. That one child gets the entire retirement plan.  
2. If a life insurance policy is designated to go outright to a spouse, it does not matter that the Revocable Trust contains a credit shelter trust that will save on estate taxes. The life insurance proceeds will never get to this tax-saving Trust because the Revocable Trust is not designated as the beneficiary of the life insurance policy; all of the fancy estate tax planning will have no effect without the correct beneficiary designation.  
3. If Mom has a bank account held jointly with one child so that the child can write checks for her, the Will provision giving all property equally to the 4 children will have no effect.  The money in that bank account will go outright to that one child unless the other children can prove, in court, that Mom intended that account to be divided equally among all her children. 

When clients have significant assets, the absence of a Flow Chart, showing which assets go to the revocable trust and which assets pass outright to loved ones, creates considerable uncertainty.  Without a flow chart, the attorney cannot be certain what asset will go to whom and what asset the trust will control. Preparation of a Flow Chart forces both the attorney and the client to review each asset and determine “the flow” of where each asset will go.  

A flow chart can reveal mistakes in an estate plan. John and Mary have two children, Paul and Anna. Paul and Anna are in their early 20's and are without children. John and Mary jointly own a lovely home in East Lyme, have a large 401(k) plan at Electric Boat with the spouse as primary beneficiary and the kids as contingent beneficiaries. They have a $750,000 Prudential life insurance policy leaving everything to the spouse and, provisionally, to the children. They also have $100,000 in investments at Merrill Lynch with the spouse as beneficiary and the children as contingent beneficiary.

John and Mary’s attorney drafts a Will that pours over to a Revocable Trust for each of them with everything going outright to their spouse and held in trust for Paul and Anna. He has them sign a deed conveying the house to John’s Revocable Trust.  John’s brother, Michael, will serve as Co-Trustee with Paul and Anna to assure that they will make prudent investments and wise distributions after the trust is funded. John and Mary think their estate plan is all set. But, without a Flow Chart, John and Mary have no idea what property Michael will oversee as Trustee. If John and Mary die, Paul and Anna will likely receive only the house in trust; the life insurance, the retirement plan, and the investment account will go outright to them instead of through the Trust. Michael will have no power over the bulk of the estate; and, the life insurance, retirement plan and investment account will be subject to the children’s creditors.

Here's what a Flow Chart of John’s estate plan looks like:

By preparing the flow chart, both the attorney and his or her clients are forced to determine which assets (e.g. – a business, real estate and bank accounts) will go to each person and which assets will go to each trust. It becomes necessary to review the beneficiary designations for each asset. If an asset does not have a designated beneficiary, the attorney must determine whether the asset is jointly owned with rights of survivorship, jointly owned as tenants in common, or solely owned.

Close examination of the beneficiary designation has deep importance for knowing who will get those assets when you die. If you do not go through the exercise of creating a Flow Chart showing each asset, your estate planning documents could be irrelevant or misleading. A Flow Chart is usually one page and is frequently the only document easily understood by the client.

When John and Mary and their attorney review this Flow Chart, they would discover that little property will go to the children in trust because all of the assets, other than their home, are passing outright. They would then have a conversation about how the life insurance, retirement plans and investment account will get to their children’s trust when John and Mary are gone. Some options might be that they could name Mary’s Revocable Trust as the beneficiary of the life insurance policy. They could add conduit trust language to the children’s trust and have the contingent beneficiary of the 401(k) plan changed to 50% to Paul’s Trust and 50% to Anna’s Trust. They could change the investment account to a transfer-on-death account that names Mary’s trust as the beneficiary.

We believe in Flow Charts and their power to show what will truly happen upon a client’s death. Make sure it becomes part of your Estate Planning process.

What Is a Hotchpot?

I know it sounds like a delicious dish, but a hotchpot is actually an estate planning tool used in many Trusts and Wills. While it is also used in other contexts, as an estate planning doctrine, it dates back as early as the 12th century.

Our children are usually the first we want to inherit our wealth after we die. If we have more than one child, and we love them equally, we want them to share in our estate equally, as well. But sometimes our children have different financial needs during our lifetime that could make an equal inheritance unfair to the others. For example, perhaps one of your children received a substantial gift from you for a down payment on a home, or to satisfy their debts or fend off a foreclosure. In light of such a gift, would it be fair to your other children if that child inherited an equal share of the remainder of your estate? Many people do not think so.

When to Use a Hotchpot in Your Will or Trust

Fortunately, there is a solution to this dilemma. A hotchpot is an estate planning tool that is created by adding a clause to your Trust or Will that takes into account gifts made to your children during your lifetime when dividing up your estate after your death. With a hotchpot clause, such gifts are treated as advancements against a child’s inheritance. These advancements are “brought into hotchpot,” added to the value of your estate before it is divided up, and then deducted from the recipient’s share.

Here is a simple example. Let’s say you have an estate worth $240,000, and three children, Annie, Betty and Charlie. You want your estate to be divided equally among your children; however, you gave Charlie a $60,000 gift to help him purchase a home. If you have a hotchpot clause in your Trust or Will, the gift you made to Charlie during your life will be “brought into hotchpot” and added to the value of your estate, so that your estate would be treated as having a value of $300,000 ($240,000 plus the $60,000 advance to Charlie). Each child’s share would be $100,000, but Charlie will be treated as having already received $60,000. So, as a result of the hotchpot, Annie and Betty each receive $100,000, and Charlie receives $40,000 ($100,000 minus the $60,000 advancement).

When NOT to Use a Hotchpot in Your Will or Trust

It is important to remember that there are many legitimate reasons why someone would not want to use a hotchpot as a way to equalize the inheritance among his or her children. Perhaps a child had special needs or other disadvantages over his or her siblings. Perhaps a child contributed in other ways to your well-being that you want to recognize. A hotchpot is by no means universal in estate planning; but there are many circumstances where it is useful and desirable.

If you think a hotchpot could be appropriate for your estate plan, contact your estate planning attorney to discuss this option.

Those who age alone are “orphan elders.” Orphan elders may have no surviving spouse, may never have had children, or may have lived long enough to have no surviving close friends or family. Because of health or financial reasons, they may be socially isolated, either completely or partially.

One-quarter of all Americans over age 65 are already part of or are at risk to join this group, according to a recent University of Michigan Health and Retirement Study. The 2012 U.S. Census data showed that about one-third of Americans aged 45 to 63 are single, which is up 50 percent from 30 years ago in 1980. More couples are deciding to remain childless. In fact, between 1980 and 2012, the number of childless women aged 40 to 44 doubled. Advances in medical care lead to longer life spans. Geographical separation of family and friends due to employment commitments contributes to the growth of orphan elder population. 

Our government and society need to prepare how to advocate for this population. No coordinated structure exists to address this burgeoning population. They are at greater risk of winding up in a nursing home because there is no one to care for them at home. Unscrupulous people can financially exploit orphan elders. 

With no family member or friend available to help, orphan elders require heightened awareness by those with whom they do come in contact. These contacts may include attorneys, accountants, physicians, nursing home and hospital personnel,  first responders, and even community members who are in a position to identify those who are at risk. After a person is identified as being at risk, only enhanced networking solutions can prevent the person from slipping between the cracks. We, as a community, must make sure their physical and emotional needs are being addressed.

What can an orphan elder do to cope with aging alone? They must identify professionals and friends who will support them. For instance, they can appoint a friend to serve as agent under an Appointment of Health Care Representative. They can appoint a trusted friend, attorney, or financial advisor to help manage their finances under a Durable Power of Attorney. They can have a trusted agent as a joint owner on a small checking account so that if they become disabled the trusted agent can help them manage their finances. To avoid financial abuse, they can review their finances with their attorney and financial advisor on a regular basis.  

Orphan elders must show a willingness to have others help them with their care – whether it is from a home care agency, a visiting nurse or housecleaner. They must be willing to keep up their medical care through regular visits to the doctor.  The more friends and community members can support an orphan elder, the more likely he or she will take these steps. 

Certainly, socializing with others can increase the likelihood of finding others to care for them. Orphan elders should attend places of worship, community events, and social gatherings whenever they are able.  Establishing regular visits will enhance the likelihood of connection with others. Making housing choices that enhance visiting such as in condominiums, elderly housing, and urban assisted living, will make a measurable difference. Indeed, regular connections to a community lead to better health in older adults, including lower mortality rates, delayed functional decline, and reduced risk of cognitive problems.

For more on Orphan Elders, read the fine article by Amy Acheson, Esq. entitled "Supporting 'Orphan' Elders" in NAELA News, Jan/Feb/Mar. 2016.

What is a “no contest” clause in a will?

Occasionally, a client will ask us to include a “no contest” clause in his or her Will or Trust.  A “no contest” clause may also be referred to as an “in terrorem” clause.  This kind of clause means that if a beneficiary disputes the validity of the Will or Trust, the beneficiary will forfeit any bequest they might have received under the Will. Such a clause can dissuade a child who will receive less than other siblings under the Will or Trust from disputing the Will or Trust in court. “No Contest” clauses are generally enforceable and can be very useful as an estate planning technique. 

A typical “no contest” clause might read as follows: “If any beneficiary contests the probate or validity of any part or all of my Will – or seeks to prevent the execution of its terms – then all of the terms of my Will that benefit the contesting beneficiary are revoked and the property passing to that person shall be treated as if they failed to survive me.

Do “no contest” clauses always work?

As with most things in life, however, there are exceptions.  In a case that dates back to 1917, the Connecticut Supreme Court held that Will contests that have been initiated with “probable cause” may not trigger a loss of interest under a Will that has a “no contest” clause in it.  “Probable cause” generally means a reasonable belief in the existence of facts that could prove that a Will is invalid on some grounds.  An example of probable cause might be an ambiguity in the Will due to a drafting error.

To make sure that a “no contest” clause withstands a possible attack, the attorney must make sure that the circumstances surrounding the execution of the Will cannot be challenged when the testator dies.  For example, the testator has to have the capacity to understand the Will that he or she is signing and equally as important, that person has to understand what they have and to whom they are leaving their property.  This means that the witnesses to the testator’s signature also have to be convinced that the testator has capacity to sign the Will or Trust.  The testator cannot be influenced to sign a Will that reflects someone else’s intentions rather than their own.

Ultimately, the use of a “no contest” clause can insure that your estate is distributed exactly the way you wish.  Nevertheless, it is wise to talk to a lawyer about carefully drafting such a clause and making sure that your Will is properly executed. 

If you would like to include a “no contest clause” in your Will or Trust or you are a beneficiary of an estate in which the Will includes a “no contest” clause, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC.  

When we prepare an estate plan for our clients they often ask, “Where is the best place for me to keep my Will and other estate planning documents?” The answer to this question may vary from state to state. Some states have a procedure for filing or registering wills with a registry of wills, or a surrogate or probate court. Not in Connecticut. 

Here at Cipparone & Zaccaro, we frequently receive desperate emails from attorneys asking if we know the location of an original Will. This is because an Executor (if they know they are Executor) or other custodian of a Will must file the Will with the Connecticut Probate Court within 30 days after the death of the testator, or face penalties or fines. Conn. Gen. Stat. §§45a-282 and 45a-283.

Why is the original Will important? If properly drafted and executed, your original Will is a self-proving document. No testimony or other evidence is required to prove it is authentic. Without the original, you run a greater risk of someone challenging your Will in Probate Court. If your original Will cannot be found, the Probate Court will presume, unless it can be proven otherwise, that you intentionally revoked your Will by destroying it.

Like the shoe salesmen offering medical advice in the field of podiatry, the internet offers many suggestions for the best place to keep your original Will and estate planning documents. One of the most bizarre suggestions is to place your Will in an airtight container and put it in your freezer. This may seem like an inexpensive way to securely store your estate planning documents, until one morning when you find yourself drinking a durable power of banana smoothie. Other suggestions include: at your attorney's office, with your executor, in a fireproof safe in your own home or in a safety deposit box.

Keeping your Will at Your Estate Planning Attorney’s Office 

Some attorneys think that keeping original Wills at their office is preferable because they will likely be handling probate when the time comes. It also prevents you or others from inadvertently creating ambiguity about the terms of your Will by marking it up to make changes, losing it or accidentally destroying it without intending to revoke it.

However, keeping your original estate planning documents with your attorney has its drawbacks. People sometimes change attorneys without letting their prior attorney know. Often the testator’s family or executor have no idea who your attorney is, or where your Will can be located. Finally, attorneys sometimes change law firms and take their old files with them, or retire, or otherwise stop practicing law. These circumstances can lead to problems for your executor and family.

Keeping Your Will with Your Executor  

Likewise, keeping your original Will and estate planning documents at the home of your executor has its drawbacks. What if you want to make changes to your Will, or keep its contents secret until after your death? If the Will is out of your physical control, then you will have more than one original Will out there, which could lead to confusion and complications later on.

Keeping Your Will in a Fireproof Safe in Your Home 

One good option would be to keep it in a fireproof/waterproof safe in your home. This way it is safe and secure, and in your control. Just make sure that your executor and your estate planning attorney know where it is and that your executor has the ability to access it after your death.

Keeping Your Will in a Safe Deposit Box  

A safe deposit box at your bank is also a good place to keep your will. But if you are the sole owner of the box, upon your death, it is likely that the box will be sealed by the bank until someone gets a court order to open it. Fortunately, in Connecticut there is a statute that deals with this scenario – Conn. Gen. Stat. § 45a-284 – which permits the Probate Court to quickly issue an order allowing the box to be opened in front of a bank officer to retrieve a Will or other important documents. The bank officer will have to return a signed statement to the Probate Court stating that only the Will was removed from the safe deposit box, or that there was no Will in the safe deposit box and nothing was removed. Though available, this process is not optimal because it can cause a delay and increase the expenses for probate administration. That is why we recommend that you name your Executor as joint owner of your safe deposit box. This way, when you die your Executor will still have access to the box to retrieve your original Will.

Wherever you decide to store your original Will and other estate planning documents, keep your estate planning attorney apprised of their location and how to access to them.