§1.01 COMMUNITY SPOUSE WILL

Contributed by Joseph A. Cipparone of Cipparone & Zaccaro, PC in New London, CT.

Author’s Comments: This Will is intended for the spouse who lives at home and wishes to provide a trust fund for her disabled spouse who is on or will be applying for Medicaid. It is based on the leading cases of Skindzier v. Commissioner of Social Services, 258 Conn. 642, 784 A.2d 323 (2001), and Corcoran v. Dept. of Social Services, 271 Conn. 679, 859 A.2d 533 (2004). In Skindzier, the community spouse died leaving funds in two testamentary trusts for his institutionalized spouse and the court found that the testamentary trusts are exempt from the general transfer of assets provisions of 42 USC §1396p(c).

This sample testamentary trust provides an income only trust for the surviving spouse of one-half of the residue. Due to the statutory right to a life use in one-third of the estate under CGS §45a-436, providing the income from one-half of the residue to the spouse should exceed the statutory share. This Will assumes a close-knit, reasonably functioning family with adult children who make many of the parents’ financial decisions. This Will also assumes that the parents wish to treat their children equally. The Will waives supervision of the trust by a probate court to keep government supervision of the trust for the surviving spouse to a minimum.

Last revision: April 30, 2014.

WILL

I, [NAME], of [Town], Connecticut, revoke my former wills and codicils and

declare this to be my Will.

FIRST: I direct my Executor to pay from the residue of my estate my just

debts (except any debts which are secured by mortgage), and my

funeral and administration expenses, including any expenses which

may be involved in any ancillary administration of any part of my

estate.

SECOND: I give my tangible personal property to those of my children,

_______________, _______________, _______________ and

____________, who survive me, in approximately equal shares. I

may leave a nonbinding memorandum of my wishes regarding

some of these items. I direct my Executor to pay the cost of

packing and delivering my tangible personal property from the

residue of my estate as an administration expense.

THIRD: I give all of the residue of my real and personal property, wherever

located, as follows:

(a) If my husband/wife, _______________, survives me, I give the

residue as follows:

(1) My Executor shall set out Fifty Percent (50%) of the residue

under PARAGRAPH FOURTH for the benefit of my

husband/wife, _______________.

(2) My Executor shall set out the remaining Fifty Percent (50%)

of the residue under PARAGRAPH FIFTH for the benefit of

my then living descendants, per stirpes.

(b) If my husband/wife does not survive me, then I give all of the

residue of my real and personal property, wherever located, to my

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children, ____________, _____________, _____________ and

______________, in equal shares. If any child does not survive

me, I give the deceased child’s share to the deceased child’s

descendants who survive me, per stirpes. If a deceased child has

no descendant who survives me, I direct my Executor to add the

deceased child’s share equally to the other shares passing under

this subparagraph (b).

FOURTH: The Trustee shall retain the portion set out under this Paragraph (the

“Trust Property”) in trust for the benefit of my husband/wife,

___________________, to be known as the “______________ Trust u/w

of [NAME].” The Trustee shall administer the Trust Property as follows:

(a) The Trustee shall pay to or for the benefit of my husband/wife,

during his/her life, all of the annual net income in monthly or other

convenient installments, but at least annually. The Trustee shall

add any undistributed annual net income to principal.

(b) Upon my husband/wife’s death, the Trustee shall distribute the

balance to my children, ___________, ____________,

____________ and __________, in equal portions. If any of my

children are not then living, I give the deceased child’s share to the

deceased child’s then living descendants, per stirpes. If a

deceased child has no then living descendant, I direct my Trustee

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to add the deceased child’s share equally to the other shares

passing under this subparagraph (b).

(c) The Trustee is excused from rendering any periodic accounts of

this trust to a probate court.

FIFTH: The Trustee shall retain the portion set out under this Paragraph as an

undivided fund for the benefit of my then living descendants, per stirpes, to

be known as the “Descendants’ Trust u/w of [NAME].” The Trustee shall

administer the Trust Property as follows:

(a) If the trust is the beneficiary of any retirement accounts, then in each

year the Trustee shall withdraw the required minimum distribution

and shall pay the required minimum distribution to or for the benefit

of my descendants. In addition, the Trustee shall pay to or for the

benefit of my descendants, so much of the annual net income and

principal as the Trustee, in its sole, absolute and uncontrolled

discretion, deems necessary and advisable. The Trustee shall

consider other resources available to my descendants. The

Trustee shall add undistributed annual net income to principal.

(b) Upon my husband/wife’s death, the Trustee shall distribute the

balance to my children, _______________, _____________,

_________________ and _______________, in equal portions. If

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any of my children are not then living, I give the deceased child’s

share to the deceased child’s then living descendants, per stirpes.

If a deceased child has no then living descendant, I direct my

Trustee to add the deceased child’s share equally to the other

shares passing under this subparagraph (b).

(c) The Trustee is excused from rendering any periodic accounts of this

trust to a probate court.

SIXTH: (a) No interest of any beneficiary in any trust held under Paragraphs

FOURTH or FIFTH shall be subject to pledge, assignment, sale or

transfer in any manner. No beneficiary shall have the power in any

manner to anticipate, charge or encumber such interest. No such

interest shall be liable or subject in any manner, while in the

possession of the Trustee, for the beneficiary's debts, contracts,

liabilities or torts.

SEVENTH: (a) I direct my Executor to pay all the estate, inheritance, succession

and transfer taxes imposed by and made payable by reason of my

death under the laws of the United States or this State or any other

state or country (but excluding any generation skipping transfer

tax), whether imposed on property passing under this Will or

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otherwise, including any increase in these taxes attributable to

lifetime gifts.

(b) These tax payments shall be charged as an administration expense

against the residue of my estate. I further direct that these tax

payments shall not be prorated or apportioned in any manner,

except that if the residue is insufficient for the payment of such

taxes, the excess shall be prorated in accordance with Connecticut

law.

EIGHTH: The term "descendants" shall include legally adopted persons and

their descendants. Whenever the context may require, the use of

any gender shall include the other genders; and the singular or the

plural shall include the other. Where a gift under this Will requires

the beneficiary to survive me, the anti-lapse statute shall not apply.

NINTH: (a) I nominate ___________ and ______________, as Co-Executors.

If either of them is unable or unwilling to serve, then I nominate the

other as sole Executor. I excuse all Executors wherever acting

from posting any bond.

(b) Every Executor shall have the following powers:

(1) To manage, retain, sell, exchange, lease or otherwise deal with my property, and to delegate to an attorney-in-fact the

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power to execute all deeds and other documents appropriate to real estate transactions;

(2) To invest and reinvest in stocks, bonds, mutual funds, debentures, notes, government obligations, bank accounts or certificates of deposit;

(3) To exercise stock options;

(4) To borrow money and guarantee loans, with or without mortgage or pledge of my property;

(5) To litigate, compromise or abandon any claims against or in favor of my estate;

(6) To satisfy any gifts under this Will in cash or in kind;

(7) To appoint and compensate persons or corporations to assist in settling my estate, including custodians, accountants, attorneys-at-law, attorneys-in-fact, and investment counsel;

(8) To appoint a person or corporation to act as ancillary Executor in any state or country;

(9) To make advance distributions and maintain reserves;

(10) To take administration expenses as a deduction for estate tax and/or income tax purposes, without liability to any beneficiary;

(11) To deliver the gift of any beneficiary under the age of twenty-one (21) to any person as custodian under the uniform gifts or transfers to minors act of any state;

(12) To disclaim any interest in real or personal property;

(13) To deal with or prevent problems created by environmental hazards, including conducting assessments, taking any remedial action to contain, clean up or remove environmental hazards and expending estate assets for these purposes; and

(14) To make any elections available under federal or state law.

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TENTH: (a) I nominate __________ and ______________ to serve as Co-

Trustees of: (1) the trust for my husband/wife, [Insert spouse’s

name], under Paragraph FOURTH; and (2) the trust for the benefit

of my children as stated in Paragraph FIFTH. If either of them is

unable or unwilling to serve as Trustee of that trust, the remaining

Trustee shall serve as the sole Trustee.

(b) The primary income beneficiary, or if more than one, the majority of

them, with respect to the Trust Property or any portion or share,

may remove a Trustee. In the event of such removal, the

remaining Trustee, if any, may serve as sole Trustee, but if there is

no remaining Trustee or the person removing the Trustee so

desires, one or more successor Trustees shall be appointed by the

person removing the Trustee. This right shall be exercised by

giving written notice to the current Trustee and to the successor

Trustee, if any, and shall be effective upon acceptance by the

successor Trustee, or remaining Trustee, and the transfer to it of

the Trust Property, portion or share.

(c) Except as otherwise stated in subparagraph (a) above, every

Trustee appointed after my death shall be one of the following: (1)

an adult descendant of mine; or (2) a Professional Trustee. A

"Professional Trustee" is any corporation or association with trust

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powers or any individual who is regularly engaged in the

administration of trusts and/or estates and/or the professional

management of investments.

(d) The right to remove and/or appoint a Trustee shall be exercisable

on behalf of any person by the holder of a durable power of

attorney from that person or by the personal representative of any

person who is then legally incompetent.

(e) Every Trustee shall have all the powers, immunities and discretions

conferred upon the original Trustee. No Trustee shall be liable or

responsible for any acts or omissions of any predecessor Trustee.

No Trustee shall be required to post any bond or other security in

any jurisdiction.

(f) For purposes of this Paragraph, a Trustee shall be considered

"unable" to serve if the Trustee's attending physician certifies that

the Trustee is unable to manage financial affairs for physical or

mental reasons, or if the Trustee dies.

ELEVENTH: In addition to any powers conferred on trustees by law and in this

Will, the Trustee of any trust shall have the following powers:

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(a) To receive additional property, real or personal, from any person at any time by gift, devise or bequest, by designation of the Trustee to receive insurance proceeds, or otherwise.

(b) To retain, without liability for any resulting loss or depreciation, all property, real or personal, received or purchased by the Trustee from me or my estate, specifically including any stock of any banking corporation or association which may serve as Trustee, or any security of an affiliated company, although that property may not be of the type prescribed by law for the investment of trust funds, and without regard to what percentage of the value of the Trust Property it represents.

(c) To invest and reinvest the Trust Property in common or preferred stocks, common trust funds, mutual funds, bonds, debentures, notes, securities, life insurance or annuity contracts, or other real or personal property, wherever located, either of the type now or hereafter ordinarily approved for the investment of trust funds, or not, as the Trustee in its sole discretion may select; to make and change such investments from time to time according to its discretion; and to hold any investment in the name of a nominee.

(d) To sell, exchange, lease, rent, pledge, mortgage, transfer or otherwise dispose of any part of the Trust Property on such terms and conditions as it may, in its sole discretion, deem proper, including the power to make distributions in cash or in kind; and to delegate to an attorney-in-fact the power to execute all deeds and other documents appropriate to real estate transactions. These powers may be exercised for periods extending beyond the duration of any trust under this Will.

(e) To borrow money, guarantee loans and assume indebtedness for such periods of time and upon such terms and conditions as the Trustee deems advisable, including the power of a corporate Trustee to borrow from itself or a related lending entity, and to secure such loans.

(f) To pay all taxes and expenses attributable to the management of the Trust Property out of principal or income as the Trustee, in its sole discretion, determines; to file returns for all taxes; and to settle and compromise any claims arising in connection with taxes.

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(g) To exercise in person or by proxy, all voting, option, subscription, reorganization, consolidation, merger and liquidation rights, and all other rights pertaining to securities; and to take any other actions necessary because of such exercise.

(h) To pay without liability any sum due a beneficiary under the age of twenty-one (21) as follows: (1) to the beneficiary, (2) to a parent of the beneficiary on his or her behalf, or (3) to such person and in such manner as the Trustee deems for the beneficiary's benefit, including a custodian under the uniform gifts or transfers to minors act of any state.

(i) To purchase and/or maintain residential properties for rent-free occupancy by any of the beneficiaries, including the payment of real estate taxes and insurance premiums, and to charge these expenses against that beneficiary's trust.

(j) To purchase and/or maintain life insurance or annuity contracts on the lives of any of the beneficiaries, or any person in whom a beneficiary has an insurable interest, and to charge these payments against that beneficiary's trust.

(k) To elect any settlement option permitted by any insurance policy payable to the Trustee which the Trustee, in its sole discretion, deems to be for the best interests of any of the beneficiaries; and to compromise any claim arising out of the policy.

(l) To elect any form of payment from any qualified or nonqualified plan or individual retirement account (IRA) payable to the Trustee, and to make any related tax elections.

(m) To accept assets from the Trustee of any trust created by me, and to add the same to the trust created on substantially the same terms under this Agreement. The Trustee shall have no liability for actions taken or omitted in reliance on this subparagraph.

(n) To divide any trust into separate trusts for any purpose, such as allocating the federal generation skipping transfer tax exemption so that one or more of these trusts is entirely exempt from the federal generation skipping transfer tax. In investing and making distributions from the separate trusts,

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the Trustee shall consider the tax saving opportunities afforded by the existence of separate trusts.

(o) If a Trustee in its sole and absolute discretion determines that a beneficiary of any trust is eligible for public benefits including but not limited to Medicaid or Supplemental Security Income, the Trustee may amend this Agreement at any time to the extent necessary to establish or maintain the beneficiary’s eligibility for public benefits.

(p) To appoint and compensate persons or corporations to assist in the administration of the trusts, including custodians, accountants, attorneys-at-law, attorneys-in-fact, and investment counsel, without liability for any actions taken or omitted by them, provided the Trustee used due care in selecting and retaining them.

(q) To appoint an ancillary Trustee to serve in any jurisdiction in which any Trustee shall be ineligible to act as Trustee. In the event any Trustee making such appointment ceases to serve, the ancillary Trustee shall also cease to serve.

(r) To deal with or prevent problems created by environmental hazards, including conducting assessments, taking any remedial action to contain, clean up or remove environmental hazards and expending trust assets for these purposes.

(s) To purchase and/or maintain personal property for the use and enjoyment of the beneficiaries and to charge expenses of such property against that beneficiary’s trust.

(t) To make loans to a beneficiary (whether secured or unsecured) on terms deemed reasonable by the Trustee.

(u) To decant the principal of any trust to the Trustee of a new trust agreement provided (1) the beneficiaries of the new trust agreement may only include beneficiaries of the original trust, (2) the new trust agreement may not reduce any fixed income, annuity or unitrust interest in the assets of the original trust, and (3) if any contribution to the original trust qualified for a marital or charitable deduction for federal income, gift or estate tax purposes, the new trust agreement shall not contain any provision which, if included in the original trust, would have prevented the original trust from qualifying for such a deduction in whole or in part. The

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Trustee shall have no liability for actions taken or omitted in reliance on this subparagraph.

(v) To appoint a Co-Trustee of this Trust Agreement, to act jointly with such appointing Trustee in the same manner and with the same powers and to act as sole Trustee in the event such appointing Trustee becomes unable or unwilling to serve.

If two (2) Trustees are serving under this Agreement, the Trustees' powers

shall be exercisable only by the unanimous agreement of the Trustees. If

more than two (2) Trustees shall be serving, the decision of a majority of

them shall control, and any dissenting Trustee shall not be liable for

actions taken or omitted in accordance with the majority decision.

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I declare this to be my Will dated __________________, 20__.

_____________________________

[NAME] declared this to be his/her Will and signed it in our presence, and we, at

his/her request, in his/her presence and in the presence of each other, have signed our

names as witnesses on _______________, 20__.

__________________________ _____________________________Witness Address

__________________________ _____________________________Witness Address

We have been duly sworn and declare that we witnessed the execution of

this Will of [NAME]; that he/she signed this Will and declared it to be his/her Will in our

presence; that we signed this Will as witnesses in his/her presence and in the presence

of each other and at his/her request; that at the time he/she signed this Will he/she

appeared to us to be of full age and of sound and disposing mind and memory and

under no improper influence or restraint; and that we make this affidavit at his/her

request.

__________________________________Witness

__________________________________Witness

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STATE OF CONNECTICUT )): ss. New London ____________, 20__

COUNTY OF NEW LONDON )

Then and there personally appeared before me, _______________, duly

qualified to administer oaths, ________________________, who subscribed and made

oath to the truth of the foregoing affidavit.

__________________________________Commissioner of the Superior Court

STATE OF CONNECTICUT )): ss. New London _____________, 20__

COUNTY OF NEW LONDON )

Then and there personally appeared before me, ___________________,

duly qualified to administer oaths, __________________, who subscribed and made

oath to the truth of the foregoing affidavit.

__________________________________Commissioner of the Superior Court

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