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New Connecticut Legislation Creates Additional Grounds to Remove a Fiduciary

September 1, 2001

Effective October 1, 2001, Connecticut’s probate courts will have expanded ability to remove and replace fiduciaries, and beneficiaries of Connecticut estates and trusts, including individuals and charitable corporations, will not need to establish that a fiduciary’s performance is inadequate before obtaining a new fiduciary.

Prior Law Generally Required Cause

Prior to Public Act 01-114 (the “Act”), a probate court generally could remove a fiduciary only in limited situations. A probate court could remove a fiduciary for cause, such as neglect or wasting the estate. A probate court could also remove a fiduciary if the will or trust document provided for removal or replacement. In many cases, this meant that beneficiaries of an estate or trust did not have the ability to obtain a new fiduciary even when the beneficiaries all wanted a change or when there had been a change in circumstances.

New Grounds to Remove a Fiduciary

The Act expands the powers of probate courts by adding the power to remove fiduciaries in the following circumstances:

All the beneficiaries request removal, or there has been a substantial change in circumstances, and
- removal best serves the interests of all the beneficiaries;
- removal is not inconsistent with the governing instrument; and
- a suitable successor fiduciary or co-fiduciary is available; or
Lack of cooperation among co-fiduciaries is substantially impairing administration of the estate; or
Removal of the fiduciary best serves the interests of the beneficiaries because of the unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively.

The mere fact that a bank is a successor to the corporate fiduciary named in the will or trust is not “a substantial change in circumstances” that will justify removal of the fiduciary.

Requirement of Notice and Hearing

As a procedural matter, the probate court having justification must hold a hearing on any petition for removal; the proceeding may be instituted by the probate court itself or by any “interested person,” which includes a beneficiary.

Conclusion

The Act will in many cases make it easier for beneficiaries of a trust or estate to obtain probate court approval to remove or replace an executor, trustee, or other fiduciary with whom the beneficiaries are unhappy.

Questions

Please call or e-mail us if you have any questions or want to discuss how this new Act may affect you.

Trusts and Estates Department Tax Exempt Organizations

Leonard Leader, Chair Melinda A. Agsten
203-363-7602 203-498-4326
lleader@wiggin.com magsten@wiggin.com

John W. Barnett Robert F. Cavanagh
203-498-4303 203-498-4305
jbarnett@wiggin.com rcavanagh@wiggin.com

Mark E. Haranzo Patricia A. Beauregard
203-363-7640 203-498-4423
mharanzo@wiggin.com pbeauregard@wiggin.com

Charles C. Kingsley
203-498-4307
ckingsley@wiggin.com

Karen L. Clute
203-498-4349
kclute@wiggin.com

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