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September 2016

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

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

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

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

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

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

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

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

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

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

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

Do “no contest” clauses always work?

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

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

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

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

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

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

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

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

Keeping your Will at Your Estate Planning Attorney’s Office 

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

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

Keeping Your Will with Your Executor  

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

Keeping Your Will in a Fireproof Safe in Your Home 

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

Keeping Your Will in a Safe Deposit Box  

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

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