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|Posted: Mon Oct 24, 2005 12:35 am Post subject:
Corrupticourts 2 Probate
Don't Die In Connecticut
A will can't protect you from the state's predatory probate system,
considered a national disgrace
By John H. Langbein
October 23 2005
Try not to die in Connecticut. If you are a person of means, you should
- late in life - establish your domicile in some place such as Florida
or Maine or Arizona that has a responsible probate system. You can
still own a Connecticut home and spend plenty of time here. Indeed, if
you place title to your Connecticut home in a Florida trust, your
trustee can even transfer the house after your death without going
through Connecticut probate.
I am not the only person who gives such advice. If you go for a drive
in Connecticut's affluent towns and suburbs in the summer and fall,
you'll see all the gray-haired drivers sporting their Florida license
plates. Some of these people would leave even if they did not fear
Connecticut probate, in order to escape our state income tax and our
winter weather. But for many, I am certain, the final straw that causes
them to change domicile is the prospect of having their estates ripped
off in Connecticut's probate courts. By encouraging these people to
leave our state, Connecticut probate causes the state to lose the
income tax and other tax revenue that goes where they go.
Connecticut probate is a national scandal. Our bad reputation is
longstanding. More than 50 years ago, Professor Thomas Atkinson of New
York University, then the leading American authority on the field,
wrote that "Connecticut is just about at the bottom of the list so far
as its probate court system is concerned."
I move in national trust and estate circles, where Connecticut probate
is routinely discussed as a disgrace. For estate planning professionals
and law professors, Connecticut is the poster child for how not to
organize probate courts.
The Five Core Failings
There are five major (and deeply interconnected) structural flaws in
1. The wasteful multiplicity of our probate courts.
2. The use of people who are not legally trained to serve as judges.
3. The corruption that inheres in having lawyers sit as judges part
time while they continue to practice law.
4. The perverse incentives of Connecticut's probate court fee system,
which rewards probate judges for inflicting make-work on estates.
5. The sustained, self-serving opposition that the probate judges have
mounted to protect their turf and fight off benign national trends and
standards in probate procedure that would reduce expense for our
Connecticut has 123 separate probate courts, with 123 probate judges,
123 separate offices, 123 separate budgets, 123 separate staffs. A few
of the courts operate full time; most do not.
Some in fact operate only a few hours a week, although the judges and
the staffs obtain such perks of full-time employment as full health
insurance. Maintaining these 123 courts and staffs is hugely wasteful,
especially the many that sit idle much of the week.
In Essex, for example, whose population is 6,730, I am told that the
part-time probate judge takes down about $58,000 in compensation plus
full heath insurance.
Nobody has done a careful study of how many probate courts our state
really needs, but my starting estimate is about one-tenth the number we
have. A dozen courts rather than 10 dozen, staffed with professional
judges and operating full time, would do a far better job at a fraction
of the cost.
Connecticut probate is horribly expensive. Filing fees and subsequent
charges are far higher than elsewhere. Recently, the probate courts
extended their fees to non-probate transfers such as life insurance and
joint tenancy, for which, by definition, no probate services are
needed. The reason our citizens suffer these voracious fees is quite
simple: Our citizens are being made to feed 10 times more probate
courts and probate judges than they need.
Connecticut law does not require probate judges to be legally trained,
even though probate judges make legal decisions that affect the
property and liberty of our citizens. These judges decide who owns the
property of a decedent; they decide whether to strip a citizen of his
or her liberty by declaring the citizen incompetent.
Such powers ought not to be in the hands of people who lack legal
training. If you exercise the power to take away somebody's liberty or
property, you should have a strong command of the complex substantive
and procedural rules that are meant to govern such decisions.
Indeed, it is far from clear that Connecticut probate could withstand
constitutional scrutiny on this ground under the due process clause of
the U.S. Constitution.
Connecticut's reliance on non-lawyer judges contributes directly to the
wastefulness of our probate procedure. It is the source of the
duplicate trial rule - the rule that allows appeal de novo to the
In this way, Connecticut allows a litigant who is determined to have a
contested probate matter heard by a professional judge to do so, but
only after making that person pay for two full trials.
Fortunately, many of our probate judges are legally trained.
Unfortunately, most of those are part-timers who practice law when they
are not serving as judges. The result is rampant conflict of interest
and cronyism. If you are the probate judge in Bethany on Monday and I
am the probate judge in Woodbridge on Tuesday, and we each practice law
before each other or our partners practice there, abuse is invited. I
am reluctant to rule against you or your partner, because I know that
you could rule unfavorably against the case that my partner or I am
handling before you. The danger of favoritism in such circumstances is
The solution is obvious. Judges should be required to be full-time
officers of justice, legally trained, but forbidden to practice law or
to be partners in law firms. We do not need 123 full-time probate
judges. Proper professionalization of our probate courts is intimately
connected to reducing the number of these courts.
The Fee System
The worst feature of Connecticut's probate courts is the fee system.
These courts are run on the same principle as a Popeye's Chicken
franchise or a Midas Muffler store: The proprietor gets paid by the
amount of business he or she can drum up. If you run a Popeye's outlet,
the more chicken you sell, the more money you make. If you run a
Connecticut probate franchise, you are also an entrepreneur who can
maximize your fee income by making estates engage in needless filings
and seek needless approvals. The more work you impose on estates that
don't need it, the more money you make. The more paperwork the judge
orders up, the more money finds its way into the judge's pocket.
The sad truth is that much of what goes on in Connecticut probate
courts can only be called a shakedown. Our procedures invite judges to
extort money from the estates of decedents by insisting upon needless
court filings and court approvals.
The perverse financial incentives that pervade our probate system are a
disgrace. Goal No.1 of probate reform in Connecticut should be to sever
the link between court proceedings and profit. Any system of judicial
procedure that compensates judges or court officers for stirring up
more work is wrong.
We know exactly how to fix probate procedure in the United States. The
Uniform Law Commission worked out the reform model in the 1960s, when
it brought together leading judges, legislators and scholars to draft
the Uniform Probate Code. The code calls for full-time professional
judges, upgraded to the level of the court of general jurisdiction, and
it reforms probate procedure by eliminating make-work. The code is in
effect in many states, from Maine to Hawaii.
The code reflects the understanding that most executors or
administrators are trustworthy family members or professional
fiduciaries who can administer estates faithfully without detailed and
costly court supervision. The code makes unsupervised administration
the norm, while preserving the option for any mistrustful or aggrieved
party to remove the estate from that track and insist upon judicial
For four decades, many Connecticut probate judges have used their
considerable political influence to keep our state from moving in this
direction. The reason is simple: They want the fees. Our corrupt system
of franchise-style probate courts has given the judges a powerful
vested interest in preventing reforms that would lower costs and speed
Apart from probate, Connecticut has what is surely one of the finest
civil justice systems in the United States. The trial and appellate
benches are staffed with able judges, selected largely on merit, who
have developed a splendid reputation for trustworthy judicial
The obvious solution to our probate mess, when you have Superior Courts
as good as ours, and Probate Courts as disgraceful as ours, is to
abolish the Probate Court and merge it into a specialized division of
the Superior Court. That solution, widely followed in other states, is
what the Uniform Probate Code has long recommended.
John H. Langbein is Sterling Professor of Law and Legal History at Yale
Law School. This was adapted from testimony he gave to the General
Assembly's Committee on Program Review and Investigations on Oct. 7.
Copyright 2005, Hartford Courant
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