OLR Bill Analysis

sSB 309

AN ACT CONCERNING PROBATE COURT OPERATIONS.

SUMMARY:

This bill makes several changes to probate law and related matters. It:

1. conforms to existing practice by specifying that compensation probate judges receive for service as administrative judges for regional children's probate courts or special assignment probate judges are included in their calculations and contributions for purposes of retirement benefits ( 1-4);

2. clarifies a surviving spouse's entitlement to a pension when a judge or employee dies in office ( 5);

3. allows only probate retirees' pension-related disputes, and not those related to other benefits, to be submitted to the state retirement commission ( 6);

4. reduces the frequency of a probate court administrator reporting requirement ( 7);

5. clarifies how to determine estate settlement costs for people not domiciled in Connecticut upon their death ( 8);

6. makes changes affecting transfers of certain children's matters, such as allowing transfers to regional children's probate courts and allowing the probate court, on its own motion, to transfer additional matters to superior court ( 9-10);

7. allows regional children's probate court matters to be assigned to probate court officers for specified purposes ( 11);

8. renames as “estate examiners” the temporary administrators allowed by PA 11-128 for investigating financial or medical information for litigation or other specified purposes ( 12-14);

9. changes requirements for attorneys of people with intellectual disabilities in connection with the court's review of the guardianship ( 15);

10. allows service of process for nonresident fiduciaries to be made by leaving the process with the probate court, even if the judge is not there ( 16-17); and

11. makes several changes related to managing and safekeeping probate court records, including shifting certain responsibilities from the state librarian to the probate court administrator ( 18-24).

The bill also makes minor, technical, and conforming changes.

EFFECTIVE DATE: Various; see below.

1-6 — RETIREMENT

1-4 Contributions and Calculations

The bill specifies that a probate judge's compensation for computing retirement benefits includes compensation for service as (1) an administrative judge for a regional children's probate court on or after June 1, 2004 or (2) a special assignment probate judge on or after July 1, 2007. It also specifies that a probate judge's credited service includes service of at least 1,000 hours per year as an administrative judge for a regional children's probate court after the judge no longer serves as a probate judge.

The law requires probate judges to contribute to the retirement fund 3. 75% of the portion of their annual salary that is not subject to Social Security deductions and 1% of the portion that is subject to these deductions. The bill specifies that for purposes of computing their required contributions, their pay includes compensation received while serving as an administrative judge for a regional children's probate court or as a special assignment probate judge.

The bill makes other changes clarifying that administrative judges for regional children's probate courts and special assignment probate judges are included within the probate retirement system.

EFFECTIVE DATE: July 1, 2012

5 — Surviving Spouses

The bill clarifies that if a married probate judge or employee who has not elected a retirement option dies while in office, but was eligible to retire at the time of death, the surviving spouse is entitled to retirement benefits as set by law.

EFFECTIVE DATE: Upon passage

6 — Claims to Retirement Commission

The bill provides that only claims related to a probate retiree's pension, and not claims for other benefits (e. g. , health insurance), go to the state retirement commission. (Under specified circumstances, retirees can bring claims or disputes regarding their health insurance to the insurance department. )

EFFECTIVE DATE: October 1, 2012

7 — REPORT OF PROBATE COURT ADMINISTRATOR

The bill requires the probate court administrator to submit to the chief court administrator a report on the business of the administrator's office by April 1 of each even-numbered year, rather than every year as current law requires. Under the bill, the report must cover the two-year period ending the previous June 30; current law requires the report to cover the previous calendar year.

EFFECTIVE DATE: October 1, 2012

8 — ESTATE SETTLEMENT COSTS FOR A NON-DOMICILIARY

The bill eliminates a provision on determining estate settlement costs for people who were not domiciled in Connecticut at the time of death and whose wills were proved according to law. The provision provides that costs are based on an assumed gross taxable value equal to the sum of (1) the actual gross taxable estate and (2) the value of the estate's inventory of property that is not part of the actual gross taxable estate, except for any insurance proceeds exempt from taxation by law (e. g. , life insurance).

PA 11-128 specified that in a proceeding to settle the estate of someone who was not domiciled in Connecticut at death (whether the person died with a will or intestate), the person is considered to have been domiciled here for purposes of computing estate settlement costs, unless the probate court determines that the in-state proceedings are ancillary to those in the person's state of domicile.

EFFECTIVE DATE: Upon passage

9-10 — TRANSFER OF CHILDREN'S MATTERS

By law, a probate court must transfer to superior court certain contested matters related to children, including custody and guardianship, on the motion of a party other than one who applied for the removal of a parent or guardian. The bill also allows such transfers upon (1) the motion of the party who applied for a parent's or guardian's removal or (2) the court's own motion. It provides that any such transfer (mandatory or permissive) must occur before there is a hearing on the merits in the case.

The law also provides for the transfer from probate court to superior court of contested cases on the termination of parental rights, before a hearing on the merits. In addition, current law allows the probate court, on its own motion or that of any interested party, to transfer such custody, guardianship, or termination of parental rights cases to another probate judge, whom the probate court administrator selects from a panel specializing in children's matters. The bill instead allows such transfers to regional children's probate courts.

EFFECTIVE DATE: January 1, 2013

11 — PROBATE COURT OFFICERS IN REGIONAL CHILDREN'S PROBATE COURTS

The bill allows matters in regional children's probate courts to be assigned to a probate court officer for specified purposes. These include allowing the officer to:

1. conduct conferences, when appropriate, with interested parties, their attorneys, representatives from the Department of Children and Families (DCF), and social service providers;

2. facilitate the development of visitation and family care plans for the minor;

3. coordinate with DCF to facilitate a thorough review of the matter;

4. assess whether the family's care plan, if any, is in the minor's best interests;

5. help the family to access community services; and

6. follow up on court orders.

The bill allows the probate court officer to file a report with the court that may include:

1. the officer's assessment of the (a) minor's and family's history, (b) parent's and any proposed guardian's involvement with the minor, and (c) family's care plan for the minor;

2. information on the interested parties' physical, social, and emotional status; and

3. any other information or data relevant to the court's determination of the minor's best interests.

Any such report is admissible in evidence. The court must order the officer to appear at a hearing if a party or his or her attorney notifies the court before a scheduled hearing that they want to cross-examine the officer who filed the report.

EFFECTIVE DATE: October 1, 2012

12-14 — ESTATE EXAMINERS

By law, probate courts may appoint a temporary administrator upon the application of a creditor or other party interested in a deceased person's estate to protect the property until the will is probated or an administrator is appointed. PA 11-128 also allowed anyone with an interest in a deceased person's estate, and who needs financial or medical information about the deceased person for purposes of a potential lawsuit or other benefits (e. g. , insurance), to apply to the probate court to appoint a temporary administrator. The bill renames the administrator in this latter case an “estate examiner” and makes conforming changes.

EFFECTIVE DATE: January 1, 2013

15 — GUARDIANSHIP AND ATTORNEYS FOR PEOPLE WITH INTELLECTUAL DISABILITIES

By law, after a guardian is appointed for someone with an intellectual disability, the probate court must review the guardianship at least every three years. Current law generally requires the review to be based on written reports submitted by the Department of Development Services (DDS), the guardian, and the ward's attorney. The bill eliminates the requirement that the ward's attorney submit the report. It instead requires the court to provide the attorney with a copy of any report on the ward submitted by the guardian or DDS.

Under the bill, within 30 days after receiving a copy of such a report, the ward's attorney must meet with the ward about the report. Within this same time frame, the attorney must also give the court written notice indicating (1) that he or she has met with the ward and (2) whether the attorney or ward is requesting a hearing. The bill specifies that these provisions do not prevent the ward or his or her attorney from requesting a hearing at other times as the law allows.

EFFECTIVE DATE: October 1, 2012

16-17 — SERVICE OF PROCESS ON OUT-OF-STATE FIDUCIARIES

The bill provides that service of process on a nonresident fiduciary can be made by leaving an attested copy of the process with the probate court that appointed the fiduciary, in lieu of leaving it with the judge him- or herself as current law requires.

This includes service on probate judges as attorneys for nonresident fiduciaries. It also includes service on nonresident fiduciaries (including executors, administrators, conservators, guardians, or trustees) in their representative capacities, or individual capacities in cases related to their service as a fiduciary.

EFFECTIVE DATE: January 1, 2013

18-24 — PROBATE RECORDS

The bill makes several changes affecting the roles of the probate court administrator, state librarian, and public records administrator in managing probate court records. (By law, the state librarian appoints the public records administrator. )

The bill removes probate district records from the state librarian's records management program and no longer requires the state librarian to consult with the probate court administrator in carrying out his duties. It also eliminates the state librarian's authority to require probate districts to inventory their books, records, papers, and documents and to submit to him for approval, retention schedules for these items.

The bill eliminates the requirement that the probate court administrator get the approval of the public records administrator before disposing of original records, papers, or documents that have been reproduced according to specified procedures under law.

The bill also exempts probate districts from various requirements on the safekeeping of records that currently apply to municipalities and probate districts. These include that public records be bound; that originals be repaired, rebound, or renovated as needed; and related provisions on the payment for such safekeeping.

19 & 23 — Regulations

The bill eliminates the requirement that the state librarian adopt regulations, with the state library board's approval, concerning the creation and preservation of probate district records.

Current law allows the probate court administrator, under specified procedures, to adopt regulations on record maintenance. The bill instead refers to regulations on records management. It allows the probate court administrator, in consultation with the public records administrator, to issue and enforce regulations, or establish policies or retention schedules, to manage, preserve, and dispose of probate court records, papers, and documents, including administrative records.

22 — Safe or Vault for Probate Records

The law requires probate judges to keep certain court records and files in a fire-resistant safe or vault, in office space provided by the towns comprising the district. (The requirement does not apply to records or files that are in use or in storage. ) Under current law, the towns in the probate district must pay for the safe, vault, and office space, in proportion to their most recent grand lists. The bill instead provides that the expenses will be allocated among the towns as they agree, or if they cannot agree, in proportion to their grand lists.

By law, if the probate districts' proper authorities fail to provide the required safe, vault, or office space, the public records administrator may order them to do so. If they fail to comply within a reasonable time, the public records administrator must alert the state librarian, who may seek enforcement of compliance with the order. Current law requires the state librarian to send a copy of the order to the chief administrative officers of the towns comprising the district. The bill also requires him to send a copy to the probate court administrator and the district's probate judge.

EFFECTIVE DATE: October 1, 2012

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

42

Nay

0

(03/26/2012)