By Frank S. Berall
Introduction
This article deals with the payment of fiduciary and attorney fees in probate practice and in the administration of estates and trusts. It focuses on the evolving changes and interpretations of the requirements for such fees. Allowance of fiduciary expenses, fees allowed to cofiduciaries, and conflicts of interest are also discussed, as are Connecticut’s new probate court rules that were effective July 1, 2013.
A major important subject in estate administration for both fiduciaries and attorneys alike is payment of their fees. Dramatic changes have taken place in this area of the law in the last generation, due largely to technological advances and changing societal perceptions.
The personal computer has completely altered how professionals run their offices. Dedicated software programs easily provide file management, financial analysis, and endless word processing. Fiduciaries and attorneys can record, retrieve, and process information instantly. This significantly reduces the time necessary to prepare inventories, accounts, and filings in probate court.
Billing can now be done in real time, more easily enabling fiduciaries and attorneys to substantiate fees to the client or the court. But blind reliance on computer records can be dangerous. Thus, the fiduciary or attorney should carefully review such records before their submission. Foolish mistakes can undermine the credibility of the reporting party.
Increasing Demands and Risks of Being a Fiduciary
The “business” of being a fiduciary or an attorney doing probate work has become increasingly demanding. Cell phones, Blackberries, faxes, and e-mail require constant availability to increasingly insistent clients. Furthermore, lawyers now find that many potential clients are shopping for both the most experienced and economical attorneys. Connecticut, unlike Massachusetts and some other states, has no minimum fee schedules. However, a few of the larger firms may have them for their own matters.
Conflicts of interest and malpractice claims are increasingly a problem for both fiduciaries and their attorneys. The issues raised may have an impact on the amount of fees claimed during the course of estate or trust administration or when an accounting is presented to beneficiaries or filed in a probate court.
Choice Of Counsel By A Fiduciary
In Connecticut and many other jurisdictions, “[t]he fiduciary is entitled to choose counsel and determine their compensation, and the court will extend to the fiduciary a certain amount of latitude in that regard.” [1] However, draftsmen should bear in mind that in many, if not in most, states a direction to the fiduciary in a will to use a specific attorney is not binding.
Engagement Letters
Engagement letters or comparable contracts with clients should always be used before starting any work. [2] They can be drafted to anticipate possible problems and conflicts that may occur later in the relationship between an attorney and a client or a fiduciary and a beneficiary. Furthermore they can be modified later if there is a change in the scope of services. For corporate and professional fiduciaries, and even for their attorneys, a fee schedule may sometimes initially be established. The client’s consent to this should be obtained.
Connecticut Has No Statutes Dealing with Attorney Fees or Fiduciary
Connecticut is one of many states without a statute governing fiduciary compensation, “the probate court has exclusive jurisdiction over the . . . determination of . . . fees.” [3] Note that Rule 39 of their Probate Court Rules of Procedure deals with both attorney and fiduciary fees.
The Connecticut Probate Practice Book (4th ed. 2000), pt. I, ch. IV, at I-38 [hereafter Prac. Bk.] has been completely revised. The new publication is called Probate Court Rules of Procedure. [4] This statute charges the Probate Court Administrator to recommend to the justices of the Connecticut Supreme Court uniform rules of practice for the probate courts. The comprehensive revision builds upon improvements from the recent structural changes to the probate court system, further strengthening professionalism and fostering uniformity in the courts.
A Connecticut Probate Practice Book Advisory Committee comprising probate judges and staff, probate and estate attorneys, and members of the public is charged by the Probate Court Administrator to advise him or her. This is based on information on the Probate Court’s website at http://www.ctprobate.gov.
The Advisory Committee’s work is ongoing and will yield periodic revisions to the rules. The administrator presented the revisions to the Connecticut Supreme Court for approval with an effective date for the revised practice book of July 1, 2013. However, to date, only new probate court rules, summarized in § 12.6 below, have been published.
Reasonable Attorney Fees are Allowed
As a general rule, reasonable attorney fees incurred by a Connecticut executor, administrator or trustee and those fiduciaries in most other states are properly allowed as expenses of administration. Absent an agreement by the executor and an attorney about fees, the key Connecticut authority for the concept of reasonable compensation is Hayward v. Plant. [5] This 92 year-old landmark case deals with both attorney fees in probate matters and fiduciaries’ commissions. Reasonable attorney fees for representing estate fiduciaries as well as executors’ and administrators’ commissions should be based on a combination of responsibilities assumed and services performed, both before and after fiduciaries are appointed or attorneys retained.
Reasonable “is what is fair in view of the size of the estate, the responsibilities involved [to all the beneficiaries], the character of the work required, the special problems and difficulties met in doing the work, the results achieved, the knowledge, skill and judgment required of and used by the executors, the manner and promptitude in which the estate has been settled and the time and service required, and any other circumstances which may appear . . . relevant and material to this determination. Hayward v. Plant, 98 Conn. at 384-85 (1923).
Special problems and difficulties that might warrant higher fees include difficulties in gathering the requisite heir information, marshalling estate assets, preparing real property for sale, handling disputed claims against the estate or on behalf of the estate, defending a will contest, and handling tax problems. These types of problems often require more effort, expertise, administrative time and additional court hearings.
Results achieved are a factor but the fee should not be adjusted primarily on the basis of the results achieved without due consideration of other factors . . . [6]
Dealing with closely held businesses, any difficulties obtaining performance information (even before a fiduciary’s appointment), and the fiduciary’s expertise in analyzing financial statements and handling assets requiring special attention should also be considered in determining reasonableness.
While the reasonableness standard is used as a benchmark when determining whether a claimed fiduciary fee is appropriate, the fee itself must be set “in good faith and . . . [justified] if its reasonableness is challenged by an interested party or the court . . . by complete and accurate records of all time spent and actions taken in carrying out his or her duties, so that charges can be directly related to the tasks performed.”[7]
Hayward v. Plant’s reasonableness standard, besides applying to fiduciary commissions, also applies to attorney fees.[8] Although no Connecticut Supreme Court decisions address directly what hourly rates are reasonable for compensating fiduciaries and their counsel, courts are willing to follow “established” practice. [9]
Subsequent decisions of the Connecticut Supreme Court have left the rule of reasonable compensation for fiduciaries and Hayward v. Plant’s factor analysis firmly entrenched in Connecticut law. . .
Today the rule of reasonable compensation and the Hayward v. Plant type factor analysis [have] been adopted by the courts in The Rules of Professional Conduct and the Connecticut Probate Practice Book. [10]
Many Connecticut probate judges use a rule of thumb that a fiduciary’s fee of less than 3 percent of the gross estate is presumed reasonable. In Estate of Macgonical, [11] Judge F. Paul Kurmay (who at that time was also Connecticut’s Probate Court Administrator) applied the Hayward v. Plant standard in fixing executors’ fees, allowing the two individual executors $125,000. This was 3.9063 percent of the $3,200,000 Macgonical estate. In addition, Judge Kurmay allowed $60,000 in attorney fees. The combined fees, totaling $185,000, were 5.7813 percent of that estate. “The legal fees incurred in contesting allowability were allowed because the Executors acted reasonably and in good faith and had the right to engage counsel.”
The Superior Court’s decision in Andrews v. Gorby, [12] was cited, according to Wilhelm, for the rule that an executor’s fees must be just and reasonable. Wilhelm also stated that a provision in the instrument stipulating the amount or method of calculation of the fee is binding on the fiduciary and beneficiaries and that fee schedules are neither reasonable nor unreasonable per se.
Percentage fees may be appropriate in some cases. Fee schedules are commonly used, even without an explicit direction in the will, as a basis for computing reasonable compensation for an executor. In exceptional circumstances, the probate court may depart from the schedule and award reasonable compensation. Judicial notice may be taken of human nature–in particular, that most people considering their wills do not give nearly as much attention, if any, to fiduciary compensation as they do to the disposition of their estate or minimizing taxes on it.
An award of fees based on New York’s fee statute may not necessarily be consistent with Connecticut’s policy and its law about reasonableness. [13] Thus, New York law, even if incorporated into a will’s compensation portion, may violate the positive policy of Connecticut law under the standards of Hayward v. Plant. [14] These standards are also specifically incorporated into Connecticut’s Probate Practice Book. It seems that deference should be given to statutory construction by a probate court.
Various percentage tables of minimum fees, used as a guide by certain corporate fiduciary associations, as well as the published schedules of individual banks, are generally accepted by Connecticut probate courts as representing “reasonable compensation” in the usual case. [15] “Corporate executors have commonly and customarily charged fees of two or three percent of the estate.” [16] However, “fiduciary [compensation and presumably that of their attorneys] still must be evaluated according to the reasonableness standards established by Connecticut case law.” [17] Additional services of a fiduciary, such as for managing and selling real estate, overseeing and performing manual labor, and rental management services, may be compensated if within the Hayward v. Plant criteria. [18]
Despite the above mentioned rule of thumb that a fiduciary’s fee of less than 4% of the gross estate is presumed reasonable, 3% is a more common guideline. However, courts will sometimes allow more than 3%, but amounts in excess of that often prompt further inquiry.
Wilhelm’s statement that a fiduciary and beneficiaries are bound by a provision in an instrument stipulating the fees may not be an accurate statement of the law. Furthermore, since the court is not bound by such a provision, it is difficult to believe how a fiduciary could be so bound.
Standards for Fiduciary Commissions and Attorney Fees
“Legal fees incurred by the fiduciary in connection with the performance of duties owed to the estate are a personal expense of the fiduciary, but are reimbursable out of the funds of the estate if reasonable and necessary.” [19] Connecticut General Statutes § 45a-294(a) allows “the executor his just and reasonable expenses in defending the will in the probate court, whether or not the will is admitted to probate.”
However, if this defense is successful, the expenses of defending the will during its probate or on an appeal are charged pro rata against the beneficiaries’ shares. Thus, the residuary beneficiaries will not bear the entire expense. [20]
The statute is unclear as to who bears the costs of litigation when the will is denied admission to probate and the executor takes an appeal and is unsuccessful. The statute seems to provide that the successful appellant and the unsuccessful appellee will be allowed the costs of maintaining and defending the appeal. However, the unsuccessful appellant will bear the expense of taking an appeal. Therefore, there should be an understanding among those who will profit from the appeal that they will be responsible for the expenses of taking it. But, in all these cases, the probate court will allow only just and reasonable expenses. [21] Thus, the probate judge has discretion as to who will finally bear the expense of a will contest. [22]
The probate courts’ ruling on the allowance of any item in an account is subject to appeal to the superior court by one with standing, such as a creditor, heir or beneficiary of the estate. However, when the fees of an attorney, accountant or other provider of services for the fiduciary are disallowed, that provider has no standing to appeal from the probate court decree disallowing those fees. The provider of services must bring a civil action in superior court against the executor or administrator for relief. The obligation is a personal one and not an estate obligation. However, if the action is brought while the executor or administrator still holds that office, the superior court may order the amount of the claim to be paid wholly out of the estate. [23]
Attorneys who act as fiduciaries may receive reasonable compensation in both capacities, but they should separate their two roles in their time records. [24] Hourly rates for legal services should be reasonable and charged only for legal work in proportion to the work involved and its value to the estate. Community practices should be observed and an adequate description of services rendered should be submitted. [25]
When an attorney acts only in the fiduciary capacity he is entitled to receive compensation based on the “reasonable” standard applicable to non-attorneys as enunciated in Hayward v. Plant. [26] A different standard applies to the fee of an attorney who is acting as legal counsel for the estate. . . .
When accounting for time spent the fiduciary of an estate should describe the tasks performed, indicate whether or not he is an attorney, and distinguish between the legal and nonlegal services performed. Paraprofessional and secretarial services should be billed separately. The court of probate, when examining fees, allows the attorney’s hourly rate only for legal services performed. Thus, a lawyer who is also acting as the fiduciary, or a lawyer who is performing all of the administrative tasks for the named executor, should handle an estate in a cost efficient manner using paralegal or other staff assistance for administrative duties not requiring legal expertise. These duties include balancing the checkbook, paying bills and marshalling the assets. If the attorney performs this myriad of tasks he should be prepared to allocate his time among the various types of duties recognizing that some tasks are compensated at a higher hourly rate than others. [27]
“The common law rule was that a fiduciary could not make payment to himself for legal services. Connecticut has abandoned that common law rule by practice, although there is no case or statute to support it.” [28]
Legal fees incurred by the fiduciary are “reimbursable out of the . . . estate if reasonable and necessary. . . . [Their] reasonableness . . . [is] addressed by the probate court in . . . [an] accounting . . . .” [29]
In determining . . . whether attorney’s fees are reasonable and proper, the usual rule is “quantum meruit.” The probate court’s determination should be based upon consideration of a variety of factors, generally those set forth in Hayward v. Plant with respect to executors and Rule 1.5 of the Connecticut Rules of Professional Conduct. The use and utility of “time sheets” continue[ ] to be explored by the probate courts. [30]
Rule 1.5’s factors for assessing the reasonableness of attorney’s fees amount to a broadened restatement of the factors set forth in Hayward v. Plant:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charges in the locality for similar legal services; (4) The amount involved and the results obtained . . . ; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent.
However, fees for representing fiduciaries administering estates and trusts should rarely, if ever, be contingent, except if a wrongful death or a similar claim, normally handled on a contingent fee basis, is made. Then it should be only for that claim, not for any other estate administration work, and only for those tax matters for which contingent fees are permissible under IRS Circular 230, which permits “[a] contingent fee . . . for preparation of or advice in connection with an amended tax return or a claim for refund (other than a claim for refund made on an original tax return), but only if the practitioner reasonably anticipates at the time the fee arrangement is entered into that the amended tax return or refund claim will receive a substantive review by the Internal Revenue Service.”
If the fees are perceived as unreasonable the court frequently suggests a fee which would be acceptable without scrutiny, which also provides the opportunity for the larger fee to be accepted at the option of the attorney’s fiduciary. The length of time spent in administering an estate or trust is an important factor in considering fees although not necessarily a controlling one. The judge may also require an affidavit of the tasks performed and the rationale for the apparently high fees. If the estate involved work which was not apparent from examining the file, the fees will be allowed if the fees then fall within the standards of reasonableness as perceived by the judge. Most judges consistently apply their own method of determining reasonableness. Many courts will alert attorneys and fiduciaries that the fees set forth in the Connecticut Succession Tax Return appear high so the issue can be resolved prior to filing the final account. [31]
Connecticut replaced its succession tax with an estate tax, modeled to some extent after the federal estate tax, but without any carryover basis election. Then, it [32] retroactively decreased the $3.5 million exemption to $2 million and imposed a 7.2 percent tax on estates between $2 million and $3.6 million. A suit alleging that this retroactive application violated the federal and Connecticut constitutions was dismissed on procedural grounds. [33]
Where there are two or more fiduciaries, separate awards of reasonable compensation will be made to each one, based on his or her services. [34] Courts then may give a disproportionate amount to an active as opposed to an inactive fiduciary, even if this increases the costs to the estate. [35]
Determining an Attorney’s Hourly Rate and the Reasonableness of His or Her Compensation
The hourly rate of an attorney “is usually a function of professional credentials and experience. This method does a good job taking into account ‘time and service’ and even factors like ‘knowledge, skill and judgment,’ ‘special problems and difficulties,’ and ‘character of work’ to the extent these are reflected in the use of timekeepers with different training and experience and hourly rates for different types of work.” [36]
In Estate of Fach, [37] the court noted that it “is an accepted fact that attorney’s fees for services vary greatly from one area of this state to another [and the law firm that represented the estate in the Fach case] maintains the highest rating possible in the Martindale Hubbell Law Directory.” [38] “Both of these factors were noted in connection with the list of criteria described in the Connecticut Rules of Professional Conduct as determining the reasonableness of legal fees.” [39]
Wilhelm’s example [40] quotes Probate Judge McManus’s statement in the Fach case, [41] where it is pointed out that “the court noted with some dismay that many of the entries in the computer records (such as ‘estate administration’) did nothing to help the court determine the nature of the services, and also criticized selection of a minimum time component of 15 minutes. . . . [T]he court found the attorneys’ fees to be reasonable although it did disallow various disbursements which it considered part of law firm overhead (word processing, late night taxi, in-house messengers, night restaurant, photocopying, LEXIS and telephone). It also considered relevant that the proposed legal fees were not challenged by the D.R.S. or the I.R.S.” The court determined that a number of “ordinary fiduciary services had in fact been provided by counsel, and reduced the fees of [the corporate fiduciary] accordingly.”
In this author’s opinion, photocopying, LEXIS, and telephone charges should have been allowed here, since the next to last sentence of ABA Formal Opinion 93-379 allows them.
Many attorneys request additional fees for extraordinary results not fully covered by time compensation . . . where extraordinary service or results are rendered or obtained. Special compensation is well rooted in the compensation law of fiduciaries and their counsel. [42]
The attorney for an estate often finds himself or herself spending substantial additional and arguably unnecessary time explaining matters to an inexperienced or elderly client, attempting to obtain information from an uncooperative person or institution or, worse, arguing with a client [fiduciary] as to an undoubtedly proper legal course of action. At the time of the accounting, the attorney would be well advised to submit to the court an affidavit of services explaining why the legal fees are larger than might be expected. [43]
Apostle v. Bumster, [44] involved disputes between coexecutors, one of whom was also the estate’s attorney. The Superior Court pointed out that “[s]ettling these disputes at times required the intervention of the Probate Court with resulting delays and incurring additional costs to the estate.” [45]
Other delays and expenses resulted [because of a will contest and various other matters.] . . .
[M]uch of the delay in the probating process was directly attributable to the plaintiff’s determination to control the day-to-day procedures of the probating process, and failure to accept [the attorney’s] legal opinions regarding the probating and tax procedures.
Accordingly, the court found the attorney fees to be reasonable, “taking into consideration the size and complexity of the estate, the obstacles raised by the [coexecutor] that prolonged the probating period and the lack of complete cooperation on the part of the [coexecutrix] in the efficient and expeditious conduction of her executrix’ duties.” [46]
Wilhelm, Settlement of Estates in Connecticut, states that “the time and effort an attorney is required to expend in providing legal services to a fiduciary who, for whatever reason, requires added attention, is a factor which needs to be taken into account under both the standards set in Hayward v. Plant and the principles of the Rules of Professional Conduct.” Wilhelm, § 9:116.
Practical Suggestions to Persuade Beneficiaries and Courts of the Reasonableness of a Fee
Submit Engagement Letter to Probate Court for Advance Approval, if in Litigation
When an attorney is retained in a probate matter that is being litigated, it might be advisable to submit his or her engagement letter to the probate court for advance approval.
Under Probate Court Rule § 39.1, an attorney can seek advance approval from the court for a fee arrangement.
However, opposing counsel (who must be given a copy of anything filed in the court in a contested matter) may then object to some of its terms. (Suggestion by Attorney Douglas R. Brown of Brody Wilkinson, PC, in Southport, CT.)
Task Statement
Before submitting an estate’s interim or final account to a probate court, the attorney should consider sending a copy to each beneficiary. If the estate was unduly complex and either required more time than usual or a greater degree of skill in dealing with tax or other legal problems, it would be wise to send a task statement probably in the form of a fees affidavit, too. This could summarize the attorney’s time sheets, showing his or her hourly rate and those of other lawyers and legal assistants who worked on the estate. This information may keep beneficiaries from being unduly upset if the fees seem excessive to them.
Inasmuch as Probate Court Rule § 39.2(c) lists 18 factors that should be addressed in an attorney’s task statement, an attorney should follow this framework and consider attaching time sheets to the task statement, although this is not a requirement.
If it appears necessary, a complete printout of the firm’s time records, showing the details of all services performed and time spent in administering the estate, should be sent to the probate court. Depending on the situation, this printout could also be sent to the beneficiaries. Many judges are interested in reviewing the attorney’s time and service records, especially if the attorney’s charges are higher than the particular judge’s guidelines or where a beneficiary objects to fiduciary or attorney fees. Even if no objection is made, the probate judge may ask for a fairly detailed explanation of the nature of the benefits provided by the attorney and/or fiduciary.
Affidavit of Extraordinary Services
If the total attorney fees and fiduciary commissions have exceeded a 5 percent guideline absent extraordinary circumstances, a task statement enables the probate judge to understand why this occurred. However, to help justify a fee in excess of the guidelines, it would also be wise either to file an affidavit of extraordinary services with the court or to describe these services in the fees affidavit. The latter or both affidavits should accompany a copy of the account. This material should probably also be sent to each residuary beneficiary, explaining any difficult collection and legal matters, as well as problems that occurred in dealing with one or more beneficiaries. Other controversies, particularly tax problems that led to any time-consuming audits with the IRS or Connecticut’s Department of Revenue Services, especially if tax litigation ensued and a substantial tax saving was made, should also be explained.
Bonanza Fees
Limiting fees to 4 to 5 percent of an estate may not be entirely fair to an attorney who did extensive work. In such cases a higher fee based on his or her usual hourly rate should be considered, at least for those matters taking an unusual amount of time. But before dealing with these problems, the basis for such a larger fee should be agreed to in advance by the beneficiaries. Then it should be covered in a supplementary engagement letter. Probate Court Rules § 39.1(d) still obligate the court to review attorney and fiduciary fees, even if the beneficiaries consent.
If the attorney’s efforts save the estate substantial taxes or enable it to recover or save other large sums or preserve valuable property, then, as a bonus, even a percentage fee should be considered. Again, this consideration should first be discussed with both the fiduciary and all residuary beneficiaries, as well as allowed in the tax audits and approved by the probate court. If this issue is not mentioned in the original engagement letter, a supplemental letter should be sent to the fiduciary and the beneficiaries. (The beneficiaries are not the attorney’s clients; the attorney represents the fiduciary. [47]
Beneficiaries’ Consents and Requests That the Court Not Require Their Appearance
If a beneficiary has no objection to the accounting fees and approves of the account, he or she can sign a waiver, which the attorney should send to the court along with the account. If all beneficiaries consent to the fees and approve the account, then in the interest of saving time and costs, the attorney can request that the court not hold a hearing on the account.
The Legal Fee Should Be Reduced if an Outside Accountant is Used
Professional fees paid for services normally performed by an attorney should reduce his or her legal fee. Similarly, when a percentage fee is being charged or a corporate fee schedule is used, the fee should include all probate work, as well as preparation of all federal and state income and estate tax returns. Thus, the cost of work outsourced to an accountant should be subtracted from the corporate fiduciary’s or the attorney’s fee. The former may resist this reduction, even though tax returns, inventories, or accounts are prepared (not just audited) by the fiduciary’s attorney.
Therefore, if an attorney uses an outside accountant (not an employee of his or her firm) to prepare any income or estate tax returns or the probate account, the attorney’s fee should be reduced by that of the accountant. Then, their combined fees will not exceed the amount of an attorney’s fee for doing all this work.
Investment Counsel
The use of investment counsel is entirely different. No attorney should give investment advice unless he or she is specially qualified. While the attorney must ascertain the estate’s cash needs, advising which estate securities to sell to raise cash and handling any reinvestments during estate or trust administration is not legal work. It could be done by a qualified corporate fiduciary. Otherwise, independent investment counsel should be retained, unless an individual fiduciary happens to be a qualified professional investment counselor.
Investment counsel work should be separately compensated without any reduction of the legal fee. Where the executor is a corporate fiduciary, barring a contrary will provision, the latter will normally handle liquidation of the decedent’s assets and any reinvestments. If there is to be reinvestment during estate administration, either this should have been explicitly authorized in the will or appropriate provisions of Connecticut’s Fiduciary Powers Act should have been incorporated therein. [48]
Lay and Inexperienced Fiduciaries
Where a lay fiduciary, such as a surviving spouse, does little but sign papers, dispose of tangibles, and clean out the decedent’s house, he or she should receive only a relatively small fee. This could be based on his or her time spent at a rate comparable to what would be charged by an outsider for the various tasks performed and the responsibilities assumed. The attorney no doubt will have to put in far more time administering such an estate than if the fiduciary were sophisticated. Thus, the attorney should be compensated accordingly.
Many attorneys or their legal assistants spend considerable additional time straightening out bank accounts and preparing an inventory. Occasions when this work may have to be done include when an inexperienced fiduciary insists on keeping the estate’s checkbook, has made deposits into a joint account, or has paid debts or the funeral bill from either the joint account or his or her own funds, perhaps before the attorney was retained. Uncashed checks belonging to the decedent or his or her estate may have been deposited without being properly recorded instead of being held to be turned over to the attorney to identify their source, nature, and whether they are pre-death or post-mortem items. Reimbursements may be due to a surviving joint tenant or a payor of funeral expenses or debts.
To avoid these problems, lay fiduciaries can be encouraged to turn over all receipts to the attorney’s legal assistant. All bills should be paid from the estate’s account, even if this causes a delay in payment. The legal assistant may keep the estate’s checkbook, reassuring the fiduciary that the latter’s sole signature authority gives him or her complete control over all funds. All checks are to be signed by the fiduciary. They should be accompanied by a written explanation (usually the bill itself is enough) from the legal assistant. Following this procedure will avoid much otherwise wasted time that will have to be spent in a subsequent reconstruction of deposits and withdrawals, as well as in balancing the account.
Where the Fiduciary is Also the Estate’s Attorney
A number of probate courts consider a fiduciary who is also acting as his or her own attorney (a perfectly proper thing to do) as being entitled to a lower hourly rate for his or her work as a fiduciary than as an attorney. Separate records should be kept of the time spent in each capacity. To the extent that an attorney, possibly also acting as a fiduciary, deals with complex nonlegal issues, such as learning the best ways to sell collections, dispose of artwork, and prepare for auctions, these tasks might be worth charging at his or her normal hourly rate or close to it.
Fiduciary Expenses
Executors, Administrators, and Guardians
Executors, administrators, guardians, and conservators or trustees are ordinarily allowed their reasonable expenses incurred in executing their duties. These include attorney fees, appraisers’ fees, court costs, and premiums on surety bonds, if any such bonds are required. Reasonable costs of a fiduciary, but not an attorney for the fiduciary, could also include payment for office help and all other obligations legitimately incurred by that fiduciary. However, their allowance depends on whether they were properly incurred.
Connecticut General Statutes § 52-251 provides that, in will constructions or actions for court advice about estate or trust administration under a will or a trust, anyone in a fiduciary capacity “shall be allowed . . . such reasonable sum for expenses and counsel fees as the court . . . deems equitable . . . [to] be taxed as costs . . . [and] be paid out of the estate.”
In Aaron Manor, Inc. v. Irving, [49] a case dealing with fiduciary expenses, the court stated that
“[t]he general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs . . . or a statute may confer such rights.” [50]
Another Connecticut Appellate Court case, involved whether an unsuccessful challenge to a probate court’s award of fees and expenses, among other matters, pursuant to a conservator’s final account was entitled to a trial de novo on appeal to the Connecticut Superior Court. The Superior Court had affirmed the probate court’s judgment in favor of the defendant’s appeal. [51]
The plaintiff’s appeal requested that some of the expenses of the defendant’s attorney be denied. Among these were expenses for a transcript of the tape recorded during the probate court hearing to be provided to the trial court.
The dispute was that recordings of the probate court proceedings did not comply with statutory requirements. Thus, the parties were held to have had to agree in writing to hire an official stenographer and pay for the stenographer’s services, as determined by the probate judge. Since this and other matters had not been complied with, the plaintiff was entitled to a trial de novo in the Superior Court. Andrews v. Gorby, [52] was cited, where the appeal from a probate court proceeding without a record in compliance with Conn. Gen. Stat. § 45a-186 required a trial de novo.
However, the plaintiff claimed that the reasonable compensation analysis outlined in Hayward v. Plant, [53] should determine compensation due the conservator and that the probate court’s award of fees and expenses to the conservator’s attorney was not properly documented. The Superior Court’s judgment was reversed and remanded for a trial de novo.
In any probate court proceedings, if the parties or their attorneys agree in writing, the judge may call in a competent and disinterested person to act as a stenographer. That person’s compensation is to be paid by the parties in such proportion as the probate judge decides but may not exceed that of the official Superior Court reporter. [54]
Trustees’ Expenses
This subject, described in connection with executor’s fees and expenses, also applies to trustees’ expenses and counsel fees. [55]
(i) Reasonable Expenses Allowed
Trustees are entitled to be reimbursed for all reasonable expenses properly incident to the carrying out of the trust, including employment of investment counsel, brokers, or agents when these services are necessary and proper. Thus, it appears that the same standard as employed for executors, administrators, and guardians applies to trustees.
(ii) Connecticut’s Prudent Investor Rule [56]
The prudent investor rule mandates that, in investing and managing trust assets, the trustee may incur only appropriate and reasonable costs in relation to the assets, the purpose of the trust, and the skills of the trustee.
Cofiduciaries
Each cofiduciary is allowed compensation only for services rendered by him or her. In Connecticut, cofiduciaries cannot charge double or triple the reasonable fee that a single fiduciary would charge. Instead, presumably the work will be fairly divided between them, and they will then share compensation otherwise going a sole fiduciary. However, it is also not the case that multiple fiduciaries need to divide a single fee. [57]
Connecticut’s Probate Court Rules of Procedure
Revised rules for probate court procedure were approved in November 2012, effective July 1, 2013. They were the first full revision since 1974 and will supersede Connecticut’s Probate Practice Book. Annual revisions are planned. [58]
The rules will make it easier to use the Probate Courts, promote uniformity, establish best practices, reduce administrative burdens in uncontested matters and give judges tools to manage and expedite contested matters. They are designed to be helpful.
Since July 1, 2013, new probate forms have been appearing (and being revised) daily on Connecticut’s judicial branch website. [59]
The following comments about the new probate court forms were submitted to the Connecticut Bar Association’s Probate Section’s listserv by Attorney Deborah Tedford, former President of the Connecticut Bar Association, Vice Chair of the Federal Tax Institute of New England and a Regent of the American College of Trusts and Estates Counsel. However, the material contained in them will probably become obsolete in the near future and thus may not be relevant now in 2014, and thereafter. Nonetheless, it is placed here for attorneys interested in events during 2013.
Currently there are three different estate accounting formats (not counting the affidavit in lieu of estates, making four). These are smaller estates “short form” – PC 242; medium sized estates with a Financial Report – PC-246, together with its own separate Waiver Form (PC 244A); and apparently the easiest, for larger estates and probably those where income and principal must be separated; namely, PC 241 (a largely blank form) with a separate waiver and Form 245. The latter waiver may also apply to the short estate account form as well.
While the forms require the same information as the old Rule 6 accountings (with minor variations) but in a different format, adjustments to the use of current software programs are needed to better fit the forms. This will be easier in the future, but the idea that these forms are simpler does not seem to be true in practice.
There are new forms for Continuances, Status Updates at one year and a new PC 285, Beneficiaries Named in Will Not Submitted for Probate. Among other forms, the conservatorship application and accountings have been changed.
Local probate clerks are complaining that they have not received more than a few days warning, nor are there any instructions either, for them or the probate bar. Thus an attempt to comply with the new forms should be made as best as can be done.
Since probate in Connecticut has not been simplified in the past year or thereabouts, its increased costs of compliance, not large for any single estate, it will add up for each estate and the increased formality will add to all of these costs. These must be considered in estate planning, more than they have been in the past. While they help rather than hurt practitioners, there is a surprising new normal formality and increased paperwork.
Summary of the Probate Court Rules
The most important rule is Rule 39, dealing with fees.
Rule 1 says definitions are included in rules where a term has no commonly understood meaning, e.g.: presumptive remainder beneficiary or financial report, or it needs to be distinguished from other terms used in the rules, e.g.: petition and motion.
Rule 2’s applicability of rules says that while they are mandatory in Probate Courts, they do not apply either to appeals or cases transferred to the Superior Court. Their purpose is to facilitate efficient conduct of business and advance justice. They are to be liberally construed, if strict adherence will cause injustice.
Furthermore, there is no grandfathering for existing pending cases.
Rule 3 says decrees are to be sent to each party and attorney of record. The appeal period runs from mailing of a decrees, not from the hearing date. Therefore keep the envelope. Orders and decrees must be in writing.
Rule 4 information was not available. However, copies of all documents should be sent to everyone involved.
Rule 5 says an attorney, other than a court-appointed, may withdraw by filing notice, subject to Rules of Professional Conduct, at least 3 business days prior to a hearing. But a court-appointed attorney must request the court’s permission to withdraw.
Rule 6 says an application for probate fees is not filed until the fee is received, except under §§ 45a-111 or 45a-112. Court action is conditioned upon payment.
A fee waiver must be filed with an application. There is no refund of fees if the application is withdrawn after mailing of notices. Where multiple applications are filed for the same action, a fee is charged only for the first application.
Under Rule 7.1, while there is no universal requirement, the filing party must send a copy for: the appearance and withdrawal of attorney, a petition to admit a will and a purported will, an inventory, financial report and account.
The court may require copies in any other matters and the rules specify when notice to the Attorney General is required.
No Rules 7.2 or 7.3 were in the available material.
Rule 7.4’s Filing Requirements. The signature requirements are that the attorney may sign on behalf of the client, unless the document is required to be signed under oath or penalty of false statement. Each co-fiduciary must sign a release, motion, petition or other document, unless the attorney signs for a co-fiduciary or filing includes a written statement explaining why the signature of co-fiduciary could not be obtained.
Copies must be sent to all involved including pro se couples and all attorneys. Must file with a party even if the latter could be spoken to directly, if represented by an attorney.
Under rule 8.6, there is an expanded streamlining under Rule 8.6 to reduce administrative burdens in uncontested matters. This is mandatory in decedents’ estates and trusts unless the matter is contested, public notice is needed or circumstances require a hearing with a party’s attendance.
There is discretionary streamlining of accounts of guardians of a minor’s estate and of conservators, modifications of visitation orders and transfers of conservatorship matter to or from another state.
If no hearing is requested, the court may approve the petition and may not deny it after streamlining without conducting a hearing.
No Rule 9 was in the available material.
Rule 10 provides that a party seeking a continuance shall file a written request as far in advance as possible, stating the reason and whether each party agreed to the request. A copy of it must be sent to each attorney and self-represented party with certification that a copy was sent. But the court may waive those requirements, if strict adherence would cause injustice, and may then grant a request without notice and hearing.
Rule 13 says that except as prohibited by C.G.S. § 45a-132, a court may appoint a GAL (guardian ad litem) for a party who is a minor, incompetent, appears incompetent (but has not been so adjudicated by a court), is undetermined or unborn or whose name or address is unknown.
In conservatorship proceedings, a GAL may not be appointed before determination of incapacity or ability to give informed consent.
Rule 15 says that a motion for disqualification of a judge must be in writing, state grounds and be filed at least 3 business days before the hearing, unless the court excuses this. The judge shall either recuse, conduct a hearing on disqualification before deciding whether to recuse, or request that the PCA cite another judge to hear and decide the disqualification issue. If motion is denied, the judge shall make findings regarding the gounds alleged.
Rule 16 allows the public to observe hearings, view and obtain copies of court records, unless a matter is confidential by statute or the court either closes the hearing or seals the record.
Parties and attorneys may participate in hearings and view and obtain copies from court records, even if the matter is confidential, closed or sealed.
Rules 16.6 to 16.10 require that a motion to close a hearing shall be filed at least three business days prior to a hearing. A motion to seal a document shall be filed prior to submitting information requested to be sealed. Notice of a hearing to close or seal shall be posted at a location accessible to the public. The court shall permit any person having an interest in the proceeding to present evidence and argue at the hearing.
A court may close a hearing or seal a record if (1) necessary to protect an interest that overrides the public interest in open court proceedings, (2) there are no reasonable alternatives, including sequestration of witnesses or use of pseudonyms, and if the order is no broader than necessary. The findings required are agreement of parties, although this is not itself the basis to close or hear and the court may vacate the order at any time.
Rule 17 deals with confidentiality of Social Security numbers. It was effective July 1, 2012 (a year ago) as Rule 9 of the now supplemented Probate Practice Book. It prohibits inclusion of SSN on filings (and authorizes redaction) except: if a PC or DRS form requires SSN or the court directs disclosure.
Forms have been revised so that when a SSN is required, the form has a second page treated as confidential.
No rules 18-29 were in the materials.
The following are rules for specific types of cases:
Rule 30 says that a notice of petition to admit a will (and a decree approving or denying) must be sent to: heirs, beneficiaries under the will offered for probate, beneficiaries of a testamentary trust, beneficiaries under other wills in the court’s custody and if there are any charitable beneficiaries, then once a will is admitted, only notice to beneficiaries (not to heirs) is required.
Rule 30.7 says copies need only be sent to all potential heirs/beneficiaries in the initial petition to open the estate. Once it is opened, the papers that must be certified are the inventory and account (as per 30.12). But And they must be certified only to the parties. Since children do not inherit at all, and have lost their right to challenge these documents, and have no interest in the estate, they are not Rule 4 parties. As such, they do not receive copies of anything.
The initial publication of the Rules (from printing the earliest versions) are not as clear on who is and who is not a party. Once the Will is admitted and the appeals period passes, non-beneficiaries drop off the Notice lists.
Under Rule 30.8, the GAL in a petition to admit a will need be appointed for a missing heir only if the heir would likely receive more if intestate than under will. The GAL should verify that the whereabouts are unknown, but is not required to conduct exhaustive search. However, the GAL should verify due execution and determine if there are grounds to challenge validity, and submit a statement indicating whether GAL objects to the will. If a GAL objects, the GAL is to present evidence supporting the objection at a hearing.
Rule 30.21 provides that an executor or administrator must file a status update if administration is not complete in 1 year. This includes the amount of distributions already made, the amount of estate on hand and reasons why administration is not complete. The court may order expediting steps.
Rule 30.17 (which follows 30.21) deals with mutual distribution agreements, providing for distribution of an intestate estate to non-heirs is valid if all heirs sign off. In a testate estate, mutual distribution providing for distribution to non-beneficiaries is valid, if all beneficiaries sign off.
Rule 31’s primary emphasis on estate tax returns is on nontaxable estates so as to provide clarity on issues relating to the probate fee.
Rules 31.3 says that in nontaxable estates, fair market value of real property may be substantiated with: municipal assessment, adjusted to reflect 100% of the fair market value as of the date of the assessment, comparative market analysis, appraisal or actual sales price if sold in an arm’s length transaction within 6 months of death. The court may require substantiation of value for personal property.
Rule 31.4 provides that a tax return may be amended for any asset sold in an arm’s length transaction completed within 6 months from death. But an amendment for an asset not sold within 6 months must be substantiated.
Rule 31.7 requires the court to record all attachments to an estate tax return unless: a taxpayer specifies attachments that should not be recorded and the court determines that the attachments are not necessary. This saves unnecessary recording fees.
Rule 31.8 says that for disclosure of estate tax returns, a hearing is required, unless taxpayer consents. The court may excuse notice and hearing if the requesting party is a fiduciary, heir or beneficiary.
Rule 32.2, which follows 31.8, says that notice of any trust proceeding must be given to the settlor, if living, current beneficiaries, presumptive remainder beneficiaries, trustees, trust protector of the equivalent and the Attorney General, if any charitable beneficiaries or if the trust is a special needs one.
Notice to contingent remainder beneficiaries is not required unless there is a conflict of interest with presumptive remainder beneficiaries.
Rule 32.3 involves virtual representation and appointment of GALs. Petitioner to inform court if beneficiary is a minor, incapable, undetermined or unborn, or if his name or address is unknown and to indicate whether virtual representation applies. The court is to make written findings whether virtual representation applies. If it does not apply or if representation is inadequate, the court shall appoint a guardian ad litem.
Rule 32.5 (follows 32.3) says periodic accounts for testamentary trusts are not required if excused by the will. However, the court may order an interim account for a specified period. Once it is resolved, the court shall not require ongoing periodic accounts.
Rule 32.7 (follows 32.5) the court may waive a final account for a testamentary trust if the will waives periodic accounts and all current and presumptive remainder beneficiaries waive a final account and acknowledge the proposed distribution.
If the trustee submits a summary report with an itemized list of assets on hand, itemized proposed distribution, a summary report on trustee’s management of the trust and method of calculating compensation, then if they court finds that an account would impose unreasonable burden, it may waive a final account.
Rule 33.2 (follows 32.7) involves voluntary conservatorship. It provides that a respondent may file for voluntary representation any time before adjudication of an involuntary petition. The court shall hear and decide a petition for voluntary representation before acting on involuntary petition. The court may act on a voluntary petition without further notice if the respondent is present and any other necessary parties are present or have waived notice.
Rule 33.7 (follows 32.2) provides that if the respondent has not appointed, designated or nominated a conservator, the court must receive and consider evidence of § 45a-650(h) factors when appointing one. The parties should be afforded the opportunity to present evidence and argument. This rule applies to voluntary, involuntary and successor conservators.
Rule 33.9 (follows 33.7) allows a conservator may petition for an order about the proper administration of joint assets or joint liabilities. There is a requirement that notice be given to all parties and to joint tenants. The court shall consider (1) the conserved person’s estate plan, (2) the source of the asset, (3) needs of the conserved person and those whom conserved person is obligated to support, (4) the availability of other assets to meet needs and (5) the impact on conserved person’s eligibility for public assistance.
Rule 33.10 provides that a conservator seeking to establish and fund a trust with conservatorship assets is required to: (a) submit a copy of proposed trust instrument and statement regarding the purposes, (b) disclose whether the trustee has any interest in the trust, and (c) submit copies of all estate planning documents and the names and addresses of all heirs and beneficiaries. Then the court must give notice of the hearing to all heirs and beneficiaries.
Rule 33.17 (follows 33.10) permits the court to waive a conservator’s final account if DSS determines the conserved person is eligible for Title 19. The conservator must submit a petition for waiver with: (a) DSS eligibility determination and a spend-down plan, (b) a summary of how the spend-down plan was executed, and (c) information about any pre-arranged funeral. A hearing is required.
Rule 35 dealing with probate bonds emphasize techniques to reduce or eliminate their expense. When a bond is needed, a corporate surety is required (prospectively). The fiduciary is to report receipt of additional property, income and realized gains if the aggregate exceeds the greater of 10% of the bond or $50,000.
Where there are restricted accounts, Rule 35.7 (following rule 35) says use of a PC form is mandatory. The account must be established before decree is issued. The fiduciary to submit proof of deposit into the restricted account within 10 days. The court may release funds from a restricted account without a hearing (and without an entry fee). Expenditure is subject to review in connection with next account. The fiduciary must submit at time of each accounting.
Rules 36 to 38 have 3 rules about fiduciary accounting. Rule 36: when a fiduciary can use a “financial report” as opposed to an “account” and other general provisions, the requirements for the financial reports and those for accounts.
Rules 36.1 to 36.2 deal with a “financial report” v. “account.” The simpler “financial report” format can be used in any type case, unless separate principal and income reporting is necessary.
A financial report differs from an accounting because separate principal and income reporting is not required, assets may be reported at market value (thus book value tracking is not required), nor is exact reconciliation of assets required.
However, under Rule 36.3 the court may require an account (at the request of a party or upon court’s own motion) if it is necessary to review the fiduciary’s management of the estate. Furthermore, an account can be required at any time before approval of a financial report.
Rule 36.5 (following 36.3) says the fiduciary is required to send a copy of the financial report or account to all parties and attorneys at the time of filing and must certify to court that copies were sent.
Rule 36.13 (following 36.5) requires the fiduciary is required to maintain complete financial records. A specific list of records is included in rule 36.13. This ensures the ability to audit.
In Rule 36.14, the term “fiduciary acquisition value” replaces “book value” to avoid confusion. There is a detailed comparison of how fiduciary acquisition value is determined for decedents’ estates, trusts, conservatorships and guardianships. There are guidelines on when adjustments to fiduciary acquisition value are required.
Rule 37 specifies different requirements for financial reports in a decedents’ estates, trusts and conservatorships/guardianships. A financial report replaces a statement in lieu of account for decedents’ estates.
Rule 38 separately list requirements for 2 types of accounts, namely: (1) principal and income transactions combined and (2) principal and income transactions reported separately. Transactions may be grouped into categories.
Rule 39 permits the court to approve fee arrangement or fees for services already performed without an account. An attorney not representing a fiduciary whose fees are paid from an estate (e.g., attorney for conserved person) may petition for approval of fee arrangements or fees. When revising fees, the court may require a task affidavit.
Rules 40 to 42 involve children’s matters; namely procedures in temporary custody, removal, termination and adoption cases, regional Children’s Probate Courts as well as overlapping jurisdiction between Superior Court for Juvenile Matters and Probate Courts.
Rule 40.2 (following 40 to 42) deals with a court appointment of an attorney as the sole representative of a minor. If the minor is unable to express wishes to attorney, then one individual may serve as both attorney and guardian ad litem.
However, the court may appoint a separate attorney and guardian ad litem if minor’s wishes could lead to substantial physical, financial or other harm.
Rules 40.3 to 40.4 involve seeking to clarify § 45a-607(b) by: eliminating confusion over different uses of the term “custody” and providing that a parent may file for temporary custody.
The court may grant ex parte ITC only if minor is not in current physical care of respondent parent or guardian at the time of filing, except it may grant ex parte ITC if § 45a-607(b)(2) applies for a hospitalized minor whose parents refuse consent to treatment.
Rules 41.2 to 41.3 (following 40.3 to 40.4) says the Probate Court Officer (PCO), a licensed marriage and family therapist, may conduct family conference with parties, any attorneys and the Department of Children and Family, facilitate family case plan, make recommendations about these and assist the family in engaging community services and conduct follow-up on court orders. The PCI report is admissible into evidence (by statute). The Judge may not review other materials in PCO file, unless admitted into evidence.
Rule 42 details procedures when matters concerning the same minor are pending in both the Superior and Probate Courts. These courts are to determine the proper forum under guidelines in the rule, may conduct non-administrative communications regarding jurisdiction on the record and the rule codifies existing interagency agreement among Superior Court for Juvenile Matters, Probate Courts and the DCF.
Rules 44 to 46 (following rule 42) address issues associated with hospitalization in psychiatric facilities, involuntary medication, shock therapy and treatment for drug and alcohol dependency. Their focus is on establishing notice procedures and protecting patient confidentiality.
Rules for hearings give discretion to the courts and flexibility.
Rule 60 (follows rule 46). There are two types of conferences: status conference to facilitate the progress of an uncontested matter and hearing management conference to expedite contested matters.
Rule 60.1 on status conference largely codifies existing practice, establish deadlines, provide guidance for the fiduciary and memorializes the agreement. The court may not decide any issue of fact or law. Sec. 69.1 re orders without notice and hearing are most useful in uncontested matters.
Hearing Management Conferences under Sec. 60.2 are intended primarily for contested matters as an important management tool to: clarify factual and legal issues; focus and limit discovery; facilitate speedy resolution; explore the alternatives to contested hearing and efficiently manage the court docket. There is no limitation on the number or timing of conferences.
Sec. 61.1 (follows 60) expands types of discovery available, but any discovery (other than deposition) requires court permission. The acceptance of the discovery sought either furthers a proper resolution of the proceeding or impedes it. Flexibility and fairness are key.
Under Rule 61, parties may take depositions as provided by statues without prior court authorization. But court permission is required for interrogatories, requests for production, inspection, examination and admission. The standard is whether the request is reasonably calculated to lead to admissible evidence and not unduly burdensome or expensive. The court hears motions to quash and objections and may limit or deny a discovery request.
Under Rule 62, the rules of evidence apply in all matters in which facts are in dispute and the court may apply them liberally if strict adherence will cause injustice, but this does not apply to uncontested matters.
Under Rule 63, the judge or clerk is to administer an oath or affirmation where testimony will relate to facts in dispute. The court may sequester witness, other than a party to prevent hearing testimony of other witnesses, under Rule 63.
Rule 64 requires the court to mark exhibits and retain list of them. The exhibits are to be retained until a decision is rendered and an appeal contested. In an appeal de novo, the court is to return exhibits to party who offered them so they may offer them in Superior Court trial. In an appeal on record, the court to transmit exhibits to Superior Court as part of the record.
The court may destroy exhibits unless party offering them requires their return within 4 months after a decision, and the conclusion of any appeal.
There must be audio recording under Rule 65 if: required by statute (e.g., in conservator matters under § 45a-645a), requested by a party (§ 45a-136) and then the court may record any matters. Copies of recording are available to anyone in non-confidential matter and a party in a confidential matter. A transcript of a recording is provided only if required by statute for an appeal.
Rules 65.3 to 65.4 (follows 65). Upon agreement of parties the court is to appoint a stenographer per §§ 51-72 and 51/73. Under the stenographic record is the official record of the court and any appeal is on the record and not de novo. Absent an agreement, a party may bring own stenographer, but this is not an official record with no impact on appeal. The party must provide copy of transcript to court, without cost, and to other parties, upon request and payment of cost.
Participation by electronic means is afforded by Rule 66 to give a court broad discretion whether to allow party or witness to participate by telephone or other electronic means. It enumerates considerations and should not be seen as mandating or prohibiting such participation, but give flexibility to promote fairness.
Rule 68 (follows rule 65.4) cautions parties and attorneys not to initiate ex parte communications with a judge, excluding court filings required or permitted by law, e.g., applications, inventories, accounts, and memoranda of law. Communication with the clerk re scheduling and other administrative matters is permitted.
Rule 69 permits orders without notice and hearing if the governing statute permits, does not require notice and hearing and the rules permit it. If the rule is silent, notice and hearing are required unless all parties have filed waivers of notice. But the court may require notice and hearing even if one of above applies.
Under Rule 71.1, the penalties for non-compliance by a fiduciary are: disallowance of fees, removal, surcharge and for members of the bar, sanctions under C.G.S. § 51-84, as well as contempt.
Probate courts have inherent contempt powers under Rules 71.3 to 71.7 (which follow rule 71.1) which define those powers. Non-summary criminal contempt is to be referred to the State’s Attorney for prosecution and contempt proceedings are to be recorded.
Coverage by News media is allowed under Rule 72. Except for confidential matters (unless all parties consent). The manner of coverage may be limited to avoid interference with a hearing. An objection of a party, the court may limit or prohibit coverage if it would undermine legal rights, compromise safety or privacy concerns of persons and no reasonable alternative is available.
Comments by Several Connecticut Lawyers About the Rules
Many of these comments may be obsolete now.
In uncontested estates where all assets either go to the surviving spouse, or to a trust for the benefit of the surviving spouse under a revocable trust. We are filing an Inventory, List of Claims, CT706NT and federal pro forma. However, certify that copies of all documents filed go to relevant parties. However, the rules on Parties are singularly unhelpful in determining who the parties are in this type of matter. The new rules say that they are NOT necessarily the same as those who received notice in an order of notice.
Copies of all documents (except tax returns, which are confidential) must be sent to non-beneficiary children. This may be more information than the Executor/Spouse wants to provide to the non-beneficiary children, and in some cases this could be rather awkward. The Rules seem to apply for contested or adjudicative matters, and not for the majority of purely administrative matters in the courts.
Therefore, after the Will has been admitted to probate, only parties and an attorney of record are required to receive a copy of the Inventory and Final Financial Report or Account. Section 30.12(b) also deals with covers when the Attorney General should receive copies of these documents.
If a child is a non-beneficiary under the Will, it is not entitled to a copy of the Inventory nor the Final Financial Report or Account. Only the adult parties should receive these documents.
A “party” is defined under Rule 1 (22). Rule 4 states when a fiduciary is a party. Section 30.6 gives a guide as to whom should be included as a party (excluding heirs for sending copies of the Inventory/Account). Section 30.12 requires a copy of the Inventory/Final Financial Report or Account. No rule seems to exist requiring the Executor to send any other probate court filing to a party (under section 30.7, other than the requirement a petition to admit a will and the copy of the will).
Conclusion
In the absence of statutory fees or any other uniform method for determining the fee for serving as attorney for a fiduciary or for the latter’s commission, the above-mentioned general guidelines can be supplemented by whatever value the attorney believes his or her services have added to the estate in saving taxes or obtaining higher prices at auctions or in otherwise disposing of property. Both attorney fees and fiduciary commissions must be based on the reasonable value of the services performed. Different hourly rates should be used for work of varying degrees of difficulty.
Bear in mind that under Probate Court Rules § 39.1, an attorney or fiduciary may seek advance Probate Court approval of a fee arrangement.
Keeping the client informed throughout estate administration is quite important. Prior to filing any account in court, a copy of the account should be sent to all the residuary beneficiaries to try to obtain their approval. If they approve, the judge should be requested to determine that no one be required to appear at the hearing. In the end, however, all fees must be approved by the probate judge.
While inter vivos trusts are not normally under probate court supervision, nor do they require a court accounting, in determining fees the trustee and his or her attorney should nonetheless observe the probate estate practices outlined above.
The Probate Court Administrator’s Office states it will be updating the forms website as new forms are published for the new Probate Court Rules of Procedure. The latter were effective July 1, 2013. As of July 11, 2013, it appeared that data cannot be saved on the forms, but Adobe Acrobat should be checked on this point. Furthermore, Adobe Acrobat Pro could also be used to modify pdfs if needed.
As of July 11, 2013, the following new forms had been posted on the Probate Court Website. They include a new PC-200, Petition/Administration Probate of Will, PC-246, Financial Report, Decedent’s Estate, Certification/Mailing of Document by Part, PC-151 and several others.
The link to the forms website is: http://www.ctprobate.gov/Pages/Probate-Court-Forms.aspx.
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