§1.01
COMMUNITY SPOUSE WILL
Contributed by Joseph A. Cipparone of Cole-Chu, 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 a testamentary trust for his institutionalized spouse and the court found that testamentary
trusts are exempt from the general transfer of assets provisions of 42 USC §1396p(c). This sample trust is
fully discretionary and includes a spray provision for descendants. 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 sample includes a trust for any
descendant who has not reached age 25. The Will waives supervision of the trust by a probate court to
keep government supervision of the trust to a minimum.
Last revision: September 15, 2011.
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 my husband/wife, [NAME]. If my
husband/wife does not survive me, I give this property to those of my
children, [LIST CHILDREN], 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:
(a)
If my husband/wife, [NAME] , survives me, I give all of the residue
of my real and personal property, wherever located, to the Trustee
of the trust under Paragraph FOURTH for the benefit of my
husband/wife and my descendants who survive me.
(b)
If my husband/wife does not survive me, my Executor shall divide
all of the residue of my real and personal property into equal
portions for my children, [LIST CHILDREN]. I give each of my
children one portion outright. If any of my children do not survive
me, I give the deceased child's share to the Trustee of the trusts
under Paragraph FIFTH for a 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
portion equally to the other portions passing under this
subparagraph (b).
-2-
FOURTH:
The Trustee shall administer the property set out under this
Paragraph for my husband/wife, [NAME], and my descendants who
survive me as follows:
(a)
The Trustee shall pay to or for the benefit of my
husband/wife, during his/her life, so much of the annual net
income and principal of the Trust, even to the exhaustion
thereof, as the Trustee, in its sole, absolute and unfettered
discretion, deems necessary and advisable. In addition, the
Trustee shall pay to or expend for the benefit of my
descendants, not necessarily in equal shares, so much of
the remaining annual net income and principal as the
Trustee deems necessary and advisable. In making
distributions, the Trustee shall consider all other income and
assets known to the Trustee to be available to my
husband/wife and descendants from any other source
(including public funds) and all other circumstances and
factors the Trustee considers pertinent. The Trustee shall add
undistributed annual net income to principal.
-3-
(b)
Upon my husband/wife's death, the Trustee shall divide the
balance into equal portions for my children, [LIST
CHILDREN]. The Trustee shall distribute each portion
outright to them. If any of my children are not then living, the
Trustee shall distribute the deceased child's portion to the
Trustee of the trusts under Paragraph FIFTH for a deceased
child's then living descendants, per stirpes. If a deceased
child does not have a descendant who is then living, I direct
my Executor to add the deceased child's portion equally to
the other portions passing under this subparagraph (b).
(c)
The Trustee is excused from rendering any periodic
accounts of the trust to a probate court.
FIFTH:
The Trustee shall divide any portion set out under this Paragraph among a
deceased child’s then living descendants, per stirpes, and shall administer
each descendant's share as follows:
(1)
The Trustee shall distribute the share of any descendant
who has reached the age of twenty-five (25) to the
descendant.
(2)
The Trustee shall pay to or for the benefit of each
descendant who has not reached the age of twenty-five (25),
so much of the annual net income and principal from the
-4-
descendant's share as the Trustee deems necessary and
advisable for the education, health, maintenance and
support of the descendant. The Trustee shall consider other
resources available to the descendant. The Trustee shall
add undistributed annual net income to principal. If at any
time any share of any trust shall be less than Fifty Thousand
Dollars ($50,000), the Trustee may in its discretion distribute
that share to its then primary income beneficiary. When the
descendant reaches the age of twenty-five (25), the Trustee
shall distribute the balance of the share to the descendant.
If the descendant dies before age twenty-five (25), the
Trustee shall distribute the balance of the share to the
descendant's estate.
SIXTH:
(a)
The term "education" shall mean attendance at any educational
institution, including private grammar schools, private preparatory
schools, colleges, universities, trade schools or graduate schools;
and shall include vocational apprenticeships, internships and
residencies; and shall include tuition, living and transportation
expenses, and the cost of books and equipment required by any
educational institution.
-5-
(b)
No interest of any beneficiary in any trust held under Paragraph
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:
In addition to any powers conferred on trustees by law and in this
Will, the Trustee shall have the following powers with respect to the
trusts created under this Will:
(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, 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.
-6-
(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
Agreement.
(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.
(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
in the Trust Property, or any security of an affiliated
company; and to take any other actions necessary because
of such exercise.
(h)
To hold the principal of two or more trusts in one or more
consolidated funds in which the trusts shall have undivided
interests.
(i)
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.
(j)
To purchase and/or maintain residential properties for rentfree 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.
-7-
(k)
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.
(l)
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.
(m)
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.
(n)
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.
(o)
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.
(p)
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.
(q)
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.
(r)
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.
-8-
EIGHTH:
(a)
I appoint my [relationship], [NAME], to serve as Trustee of the
trusts created under this Will. If [First Name] shall be unable or
unwilling to serve, a successor Trustee shall be appointed by the
majority of my living children, but if none of my children shall then
be living, by the primary income beneficiary, or if more than one, by
the majority of them at the time the vacancy occurs. Any Trustee
may resign at any time by giving at least thirty (30) days written
notice of the intention to do so, delivered personally or by certified
mail to the person or persons then entitled to appoint successor
Trustees and filing such notice in the probate court having primary
jurisdiction of the trust.
(b)
Any Trustee may be removed at any time and a successor Trustee
appointed by a majority of my living children, but if none of them
shall then be living, by the person then entitled to the income from
the trust. This right shall be exercised by giving written notice to
the current Trustee and to the successor Trustee and shall be
effective upon acceptance by the successor Trustee, the transfer to
it of the Trust Property, portion or share, and the filing of such
notice in the probate court having primary jurisdiction of the trust.
(c)
Every successor Trustee shall be (i) an adult descendant of mine,
(ii) a corporation or association with trust powers, or (iii) a person
-9-
who is regularly engaged in the administration of trusts and/or
estates and/or the professional management of investments.
(d)
The right to change 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.
NINTH:
The Trustee is excused from rendering any periodic accounts of the
trusts to a probate court. At least annually, the Trustee shall give to
each primary income beneficiary of any trust a statement of
account showing all receipts, disbursements and distributions of
- 10 -
principal and income from such trust since the last statement.
Unless that income beneficiary or his or her personal representative
objects to the account in writing within sixty (60) days after
receiving it, the account shall be deemed approved, and shall be
binding on all persons, whether or not in being, who are then or
who thereafter may be entitled to share in either the income or
principal of any trust. Nevertheless, the Trustee shall always be
entitled to obtain a judicial settlement of its accounts.
TENTH:
(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
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.
- 11 -
ELEVENTH:
If it is not possible to determine whether my husband/wife or I died
first, my husband/wife shall be presumed to have predeceased me
for all purposes concerning the distribution of my estate and the
payment of all taxes imposed because of my death.
TWELFTH:
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.
THIRTEENTH:
(a)
I nominate my [relationship], [NAME], as Executor of this
Will.
If [First Name] shall be unable or unwilling to serve, I
nominate my [relationship], [NAME], as successor Executor.
I
excuse any Executor 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 attorneyin-fact the 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;
- 12 -
(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.
_____________________________
[Name]
- 13 -
[NAME] declared this to be her/his Will and signed it in our presence, and
we, at her/his request, in her/his presence and in the presence of each other, have
signed our names as witnesses on [Date].
__________________________
Witness
_____________________________
Address
__________________________
Witness
_____________________________
Address
We have been duly sworn and declare that we witnessed the execution of
this Will of [NAME]; that she/he signed this Will and declared it to be her/his Will in our
presence; that we signed this Will as witnesses in her/his presence and in the presence
of each other and at her/his request; that at the time she/he signed this Will she/he
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 her/his
request.
__________________________________
Witness
__________________________________
Witness
- 14 -
STATE OF CONNECTICUT
COUNTY OF
)
) ss. __________________
)
Town
[Date]
Then and there personally appeared before me, [Attorney], duly qualified
to administer oaths, [Witness Name] and [Witness Name], who subscribed and made
oath to the truth of the foregoing affidavit.
__________________________________
Commissioner of the Superior Court
DISCLAIMER
The forms provided by CT-NAELA do not constitute legal advice or create an attorney-client relationship. They are merely a starting
point for drafting by elder law attorneys. These forms are not intended as a substitute for the practitioner’s own research or the advice of
an experienced elder law attorney. Attorneys who have contributed a form do not make any express or implied warranties that the form
contributed will be the proper form for a particular circumstance. Furthermore, the forms may not be complete or up-to-date. Anyone
using these forms (i) assumes full responsibility and risk of loss from using these forms, and (ii) agrees to indemnify and hold harmless
CT-NAELA and its officers and directors from all claims, losses, liens, expenses, and attorneys' fees ("liabilities") for any damages of any
kind, including consequential damages, to any person that arises from the use of the forms or information provided through this website.
- 15 -