Sunday, April 14, 2019
In the American lexicon, probate has become a dirty word. In his influential book on the subject, Norman Dacey sought to foster a nationwide nonprobate revolution, and had a few choice words for the probate system and the "viciously corrupt, greedy" lawyers and judges who ride its "gravy train." Closer to home, Connecticut's probate system has been called a "scandal," with critics calling it among the nation's worst court systems, and offering blunt advice: "try not to die in Connecticut."
Probate's poor reputation lingers despite recent meaningful reform. In 2011, a major restructuring accelerated the pace of prior reform efforts and resulted in a more centralized, efficient, and professional court system. Now, the probate courts have their own rules of practice designed to streamline proceedings, minimize unnecessary paperwork, and deter litigious behavior and destructive litigation tactics. The system is overseen by an administrative office that takes great pains to educate judges and the public, update and standardize major probate forms, and maintain a website that is comprehensive and user-friendly. In contrast to our often overburdened superior court system, the probate courts can handle cases more expeditiously and cost-effectively, and deal with complex family matters in an environment that is more approachable, less adversarial, and easier to navigate for pro se parties.
Why then do many trusts and estates lawyers routinely counsel their clients to avoid Connecticut probate? Why has a revocable living trust become the cornerstone of most sophisticated Connecticut estate plans? Why is there a continued reference to Connecticut's probate courts as a scandal, among the worst such courts in the nation?
I contend that Connecticut's probate courts have become far more desirable than their detractors would acknowledge, and far more efficient and effective than their reputation would suggest. Part of the disconnect is attributable to the fact that old reputations die slowly. At the same time, both the legislature and the courts can do more to build upon recent progress and continue to bring Connecticut's probate system into the twenty-first century. In this essay, I explore the lingering challenges facing Connecticut's probate courts, and proffer solutions that a thoughtful legislature and the courts themselves should embrace.