PA 15-217—sHB 7029

Judiciary Committee

AN ACT CONCERNING PROBATE COURT OPERATIONS

SUMMARY: This act makes various substantive, minor, and technical changes in probate statutes. For example, the act extends the jurisdiction of the Council on Probate Judicial Conduct to cover misconduct complaints against probate magistrates, attorney probate referees, and candidates for probate judgeships. It eliminates the option of requesting a three-judge panel for most probate matters.

Effective January 9, 2019, the act removes Plainville from the probate district with Bristol and Plymouth, instead placing it in the district with Burlington and Farmington.

The act makes certain changes concerning conservatorships, such as expanding the probate districts with jurisdiction over a petition for voluntary conservatorship. It allows a person with actual physical custody of a minor to apply to remove a parent as the minor's guardian. It gives the governor the discretion to call a special election to fill a probate court vacancy, rather than making it mandatory. It allows the probate court to appoint a successor trustee of an inter vivos trust before there is a trustee vacancy if the court finds that a vacancy is likely to occur.

Among other things, the act also:

1. eliminates a probate court administrator annual reporting requirement concerning attorney probate referees;

2. makes changes to the statute on affidavits in lieu of administration for settlement of small estates;

3. makes changes concerning probate court budgetary matters, such as specifically requiring probate courts to maintain checking accounts;

4. clarifies notice requirements regarding proceedings to appoint a guardian for an adult with intellectual disability; and

5. codifies current practice by allowing probate courts to serve as passport acceptance agencies.

EFFECTIVE DATE: October 1, 2015, unless otherwise noted below.

1-6 & 28 — THREE-JUDGE PANELS

Under existing law, the probate court administrator must transfer certain matters to a three-judge panel, usually upon motion of the affected person, a party, or the judge in the case.

The act removes the general option for a party or the judge to request a transfer of any on-the-record probate matter to a three-judge panel.

It also eliminates these transfers in:

1. an appeal of an isolation or quarantine order imposed by a local health director and

2. a review of an emergency commitment order issued by a local health director, or a petition by a local health director for a judicial commitment order, for someone with active tuberculosis.

Under prior law for these matters, the affected person or his or her counsel could request the transfer; the judge could also transfer the matter himself or herself, except for isolation or quarantine matters.

The act continues to require three-judge panels (1) in certain habeas corpus matters brought in probate court (see below) and (2) upon motion, in applications for involuntary commitment of a child or an adult to a psychiatric hospital.

6 — Habeas Corpus

By law, petitions for a writ of habeas corpus challenging an involuntary conservatorship or guardianship can be brought in the Superior Court or probate court; if the latter, they must be heard by a three-judge panel. A majority vote is needed to continue the conservatorship or guardianship.

Under prior law, an appeal to Superior Court from the three-judge probate panel's decision had to be filed in the judicial district where the probate court that appointed the guardian or conservator was located. If the appointing court is in a probate district that extends into multiple judicial districts, the act allows the appeal to be brought in any judicial district with part of the probate district in it.

8-15 — COUNCIL ON PROBATE JUDICIAL CONDUCT

Under existing law, the Council on Probate Judicial Conduct investigates complaints alleging various types of misconduct by probate judges. The act extends the council's jurisdiction to cover misconduct complaints against probate magistrates, attorney probate referees (see BACKGROUND), and candidates for probate judgeships.

Specifically, it requires the council to investigate written complaints it receives alleging that a probate magistrate or attorney probate referee, in performing his or her duties, violated any applicable law or canon of ethics. It also requires the council to investigate written complaints alleging that candidates for probate judgeships (other than incumbents) violated any applicable law or canon of ethics (1) while a candidate or (2) if elected, during the period between the election and the start of the term.

For this purpose, a person is a candidate after (1) publicly announcing his or her candidacy, (2) declaring or filing as a candidate with the state Elections Enforcement Commission, or (3) authorizing solicitations or accepting contributions or support for his or her candidacy.

EFFECTIVE DATE: July 1, 2015

Investigation Procedures

In general, the act extends the council's existing procedures to the investigations of probate magistrates, attorney probate referees, and candidates for probate judgeships. For example, in conducting an investigation, the council may use the services of legal counsel or various investigators. The respondent (the subject of the complaint) has the right to (1) be heard, (2) be represented by counsel, and (3) examine and cross-examine witnesses.

As under existing law for investigations of probate judges, the council must notify the respondent within five days of receiving a complaint. Within seven business days of completing its investigation, the council must notify the complainant and respondent as to whether it found probable cause that misconduct occurred.

Under existing law, any such probable cause investigation must be confidential, and anyone the council calls upon to provide information must not disclose his or her knowledge of the investigation to third parties unless the respondent requests this disclosure. If the probate rules of procedure require the respondent to disclose a complaint, the act extends to the person receiving that information this same limitation on further disclosure.

As under existing law, if a preliminary investigation shows probable cause that the person committed misconduct, the council must hold an open hearing and publish its findings within 15 days after the close of the hearing. The council must recommend whether the person should be publicly admonished, publicly censured, or exonerated. The council may issue a private admonishment for certain improper behavior that does not rise to the level of misconduct.

If the council recommends a public admonishment or censure, the respondent may appeal to the state Supreme Court. Under existing law for probate judges under investigation, a copy of the admonishment or censure must be sent to certain people, including the town clerks in the judge's probate district. The act also requires notice to appropriate town clerks for cases involving probate candidates.

By law, the council may recommend that the House of Representatives bring impeachment proceedings against a probate judge. The act also allows the council to recommend that the chief justice suspend or remove from office a probate magistrate or attorney probate referee. It allows the chief justice, upon the recommendation of the council or probate court administrator, to suspend or remove a probate magistrate or attorney probate referee for reasonable cause.

8 — ANNUAL REPORT ON PROBATE REFEREES

The act eliminates the requirement that the probate court administrator annually report to the governor and the Judiciary Committee on (1) the number of attorney probate referees nominated, appointed, and assigned during the prior year and (2) an analysis of their geographic, racial, and ethnic diversity.

EFFECTIVE DATE: July 1, 2015

16 — AFFIDAVIT IN LIEU OF ADMINISTRATION FOR SMALL ESTATES

The act updates the statute on expedited settlement of small estates. This procedure applies if the deceased person had no solely owned real estate and any personal property subject to probate is valued at $40,000 or less.

Under existing law, when this statute applies, instead of filing an application for admission of a will to probate or letters of administration, the appropriate party (e. g. , the surviving spouse) may file an affidavit with the probate court stating whether the decedent's debts have been paid as prescribed by law. Generally, if the appropriate party files this affidavit and no formal probate proceedings have been instituted, the court issues a decree authorizing the transfer of the property to pay any outstanding claims against the estate, with the balance going to the persons legally entitled to them.

The act makes various changes to clarify this process and remove obsolete language. Among other things, the act:

1. requires the court to send a copy of the affidavit to the Department of Administrative Services in all cases, rather than only when the petitioner indicated that the decedent received public assistance or institutional care from the state;

2. specifies that this procedure may be used even when the total amount of claims, expenses, and taxes exceed the value of the decedent's estate, provided insolvency procedures are not required;

3. removes the requirement for the person transferring motor vehicles or boats under this process to charge $3 and $1 for each transfer, respectively;

4. removes the requirement that the probate court notify the revenue services commissioner about these decrees in some circumstances; and

5. removes specific references to claims of funeral directors or other creditors owed debts from the decedent's last sickness. (They continue to be eligible for transfers as creditors under the act. )

17-19 — PROBATE BUDGETS AND RELATED MATTERS

The act requires each probate court to maintain a checking account for its annually budgeted office funds, as transferred from the probate court administration fund. The court must disburse funds from the account to pay for its budgeted expenses.

It allows probate courts to hold in escrow any money someone pays in anticipation of future fees and expenses, as an exception to the general requirement that probate courts remit all fees to the state treasurer for deposit in the probate court administration fund. Under the act, a probate court must deposit any such escrow funds in a checking account it maintains for this purpose. When the court charges a fee or expense to someone who has previously paid funds into escrow, the court must immediately remit the amount to the state treasurer.

The act also allows the probate court administrator to (1) designate one or more probate courts to administer grants from the kinship fund and grandparents and relatives respite fund and (2) transfer grant funds to courts as he determines necessary under the programs. Each designated court must maintain separate checking accounts for these funds and disburse funds from the accounts to pay for court-approved grants.

Under the act, in each of these contexts:

1. the court must maintain the checking account in its own name, at a bank, Connecticut or federal credit union, or an out-of-state bank that has a branch in Connecticut;

2. the court must not commingle these funds with other funds; and

3. existing law's provisions for the deposit of public money (CGS 4-33) do not apply to the management of these funds. (Among other things, those provisions set limits on the amount of public deposits in any one public depository or bank. )

The act also specifies that probate office budget funds are not subject to existing law's requirements regarding comptroller approval of purchase orders (CGS 4-98).

EFFECTIVE DATE: Upon passage

20 — REMOVAL OF PARENT AS MINOR'S GUARDIAN

The act allows a person with actual physical custody of a minor to apply to probate court to remove one or both parents as the minor's guardian. It eliminates the existing authority of the court to apply for this removal on its own motion.

Under existing law, any adult relative of a minor, or the minor's counsel, may also apply to remove a parent or parents as guardian.

EFFECTIVE DATE: January 1, 2016

21 — PETITION FOR VOLUNTARY CONSERVATORSHIP

Under prior law, a person seeking a voluntary conservatorship had to apply in the probate court for the district where he or she resided or was domiciled. The act also allows the person to apply in the district where he or she is located when filing the petition. This corresponds with the law for involuntary conservatorships (CGS 45a-648).

EFFECTIVE DATE: January 1, 2016

22 — NOTICE OF PROCEEDING TO APPOINT GUARDIAN FOR ADULT WITH INTELLECTUAL DISABILITY

By law, probate courts must notify certain people of hearings to appoint a guardian of an adult with intellectual disability. Prior law required notice by first class mail to certain recipients and allowed the court to direct the form of notice to others. The act specifies that notice to all such people must be made by first class mail and makes clarifying changes.

EFFECTIVE DATE: January 1, 2016

23 — CONSERVATOR'S DEED

The act specifies that a conservator's deed may be used to convey property owned by a person under either voluntary or involuntary conservatorship, rather than an “incapable person. ” By law, this deed may be used if authorized by a probate court.

24 — SPECIAL ELECTION TO FILL PROBATE VACANCY

The act allows, rather than requires, the governor to call a special election to fill a probate court vacancy or impending vacancy. It requires the probate court administrator to choose another probate judge to temporarily fill the vacancy under existing law's procedures.

25 — PASSPORT ACCEPTANCE AGENCIES

The act codifies current practice by giving each probate judge the option to have his or her court serve as a passport acceptance agency, according to federal law and regulations. Under federal regulations, state court employees meeting certain requirements may serve as passport acceptance agents, when designated by the U. S. State Department (22 CFR 51. 22).

EFFECTIVE DATE: Upon passage

26 — SUCCESSOR TRUSTEE FOR INTER VIVOS TRUST

By law, the probate court may appoint a person to serve as trustee when a trustee dies, becomes incapable, resigns, or refuses to accept the trust and the trust does not provide for filling a vacancy.

The act allows the probate court to appoint a successor trustee of an inter vivos trust before any of these events occur, if the court finds that a trustee vacancy is likely to occur. (An inter vivos trust is one established during a person's lifetime, as opposed to a testamentary trust. )

Under the act, the court must specify the conditions that the successor trustee must meet before becoming trustee. If a vacancy occurs, the successor may assume the trustee role immediately upon satisfying the conditions in the court order, without further court action.

27 — PLAINVILLE PROBATE DISTRICT

Prior law included Plainville as part of a probate district with Bristol and Plymouth. Starting with the term following the next general probate election, the act shifts Plainville to the district with Burlington and Farmington. Under existing law, unchanged by the act, there are 54 probate districts in the state.

EFFECTIVE DATE: January 9, 2019

BACKGROUND

Probate Magistrates and Attorney Probate Referees

Probate courts may refer certain matters, with the consent of the parties or their attorneys, to a probate magistrate or attorney probate referee. After hearing the matter, the magistrate or referee files a report of factual findings and conclusions. The court must hold a hearing on the report and can accept, modify, or reject it.

The probate court administrator nominates qualifying individuals to be probate magistrates and attorney probate referees for the Supreme Court chief justice's consideration and appointment.

Among other requirements, a probate magistrate must be a former probate judge; an attorney probate referee must be a person licensed to practice law in Connecticut and in good standing for at least five years. Probate magistrates are paid for each day of service; attorney probate referees are unpaid (CGS 45a-123 & -123a).

OLR Tracking: JO: MK: SD: bs