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Wills

Do wills and living trusts have to be registered with the Probate Courts?

What are the duties of an executor?

Do the provisions of a will override a beneficiary designation?

Can beneficiary designations be overruled by a new will?

What is "undue influence," and what factors determine if undue influence was exerted?

How do you file a will for safekeeping in Probate Court in Vermont?





Q: Do wills and living trusts have to be registered with the Probate Courts?

Prior to the death of the creator of the will or trust, no.  Wills are often kept for safekeeping in the Probate Court located in the Vermont County where the creator is living, but that is not mandatory.  After a person dies, their will must be submitted to the relevant Vermont Probate Court within 30 days of their death, at which time the probate process commences. 

If a person dies without a will or trust, known as dying intestate, the probate process usually begins in the relevant Vermont Probate Court following submission by a survivor of the decedent of a petition to open a probate estate.

Many trusts, including most revocable living trusts, need not ever be provided to the Probate Court.  In most instances, a revocable living trust is a will substitute.  In practice, this means that administering the trust settlor’s estate is done outside of probate, which is one of the primary reasons people choose a trust over a will when first engaging in estate planning.


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Q: What are the duties of an executor?

Executors are tasked primarily with gathering together the decedent’s estate, determining the extent of the decedent’s debts, filing the estate’s final tax forms, managing the estate assets prudently during the probate process, filing accountings with the probate court and distributing estate assets according to the court’s final distribution order. During this process there are numerous tasks that must be completed, often on a schedule set by the probate court. The executor’s responsibilities will vary depending on the types of assets in the estate, whether certain items should be sold during probate, and whether there are any challenges to the will.


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Q: Do the provisions of a will override a beneficiary designation?

No, rather a beneficiary designation overrides the provisions in your will. The reason is that your beneficiary designations form part of a contract that you have with the financial institution managing the account, and contractual provisions overrule language included in a will. For this reason, it is advisable to check every couple years to ensure all of the beneficiary designations on your financial accounts, including retirement accounts and life insurance policies, are up to date and reflect your current wishes. Also, if you are recently divorced or widowed, update your beneficiary designations immediately. It frequently happens that former spouses receive life insurance proceeds, to the dismay of current spouses.

See the articles: Why Beneficiary Designations Are So Important and Beneficiary Designations Are the Final Word on the Articles Page.


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Q: Can beneficiary designations be overruled by a new will?

No, properly completed beneficiary designations always override a previous or subsequently written will because beneficiary designations are part of a contract between the financial institution and the account owner. A will, on the other hand, is not a contract and may not override beneficiary designations. This was recently reaffirmed in a Supreme Court case, Kennedy v. Plan Administrator for DuPont Savings and Investment Plan. In this case, the Supreme Court unanimously ruled that the failure of an account owner to update a beneficiary designation meant that his pension plan passed to his ex-wife, not his daughter, even though the ex-wife had agreed in a divorce decree to forfeit all right, title, interest and claim to the husband’s pension plan. Because the pension plan named the wife as primary beneficiary at the time of the husband’s death, the wife received the pension sum.

See the articles: Why Beneficiary Designations are So Important and Beneficiary Designations Are the Final Word on the Articles Page.


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Q: What is "undue influence," and what factors determine if undue influence was exerted?

Undue influence occurs when a donor no longer exercises free will, and the resulting transactions are thus considered tainted, according to Vermont case law. In essence, when undue influence is being exerted, the donor is being coerced, and the donor’s judgment and desires are not being reflected in the resulting transaction.

Charges of undue influence may arise in probate or related court proceedings, particularly when there are suspicious circumstances surrounding the execution of the relevant documents. Suspicious circumstances include relations of trust and confidence whereby the opportunity for one party to abuse the other exists, such as between a person writing a will and their beneficiaries, guardian and ward, and spiritual advisor and persons turning to them for advice.

In determining if undue influence was present, the courts look to see if the transaction was made at arms length, i.e. the donor and the donee are not related or on close terms, and are presumed to have equal bargaining powers. Additionally, the courts will want to know if the donee profits financially from the transaction, whether the donee was acting in a fiduciary capacity to the donor, and if the transaction is consistent with the donor’s wishes expressed prior to the time when undue influence became a concern. Courts may also consider other factors as determined relevant to the specific circumstances of the case.


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Q: How do you file a will for safekeeping in Probate Court in Vermont?

To file a will for safekeeping, you should have the will placed in a sealed envelope with the following information on the envelope: (1) Testator’s full name; (2) Testator’s address; and (3) Testator’s executor(s). Many attorneys will also put their name and contact information on the envelope. The envelope should be presented to the clerk of the Probate Court with a check for $21. Remember that if you amend your will, you should be sure the Probate Court receives a copy of the updated will, in an envelope just as above.


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