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Probate in Vermont

Is it necessary to have the Probate Court appoint an executor if the executor has already been named in the deceased person's will?

In Vermont, how long does it take to be appointed executor of an estate?

What are the duties of an executor?

Is the guardian of a ward the ward's executor after the ward dies?

Does real estate that is devised or bequeathed go through probate in Vermont?

Does a vehicle have to go through probate in Vermont?

Is a life insurance policy that has a beneficiary designation part of one's probate estate?

What is an estate inventory?

How long does probate court take in Vermont?

What happens if the executor dies after the will maker?

What does a "Transfer on Death" designation mean?

In Vermont, do vehicles have to pass through probate?

What is abatement?

What does "Right of Representation" in a will or trust mean?

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

How long does a person have to contest a will in Vermont probate?

How is an attorney paid for probating an estate in Vermont?

In Vermont probate, what is the priority of creditors' claims?

What is the procedure for ancillary probate administration in Vermont?





Q: Is it necessary to have the Probate Court appoint an executor if the executor has already been named in the deceased person's will?

Yes, because an executor is not authorized to act in the capacity of executor until being officially named as the executor by the Probate Court. The will states the decedent’s preference that the named person serve as executor, but it will be the Probate Court that makes the final decision. If the person named to fulfill the role of executor files the will with the Probate Court and no interested persons object to that person being executor, the Probate Court usually acts very quickly to issue Letters Testamentary appointing the person as executor of the estate. If any of the interested persons object, then the Probate Court usually holds a hearing to discuss the objections and whether the named person should be appointed executor.


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Q: In Vermont, how long does it take to be appointed executor of an estate?

If the person seeking to be named executor was named in the will as the decedent’s choice to be executor, and none of the interested persons or others protest the choice of the executor, the probate court often acts within a matter of days or weeks in formally appointing the executor. Where there is no will, or where there might be concerns about the proposed executor named in the will, or where more than one person seeks to be the executor, the probate court may seek to hold a hearing or receive written comments on the matter, and subsequently make a ruling. The latter process might take a month or more, although the probate court usually seeks to resolve the issue of appointing an executor fairly quickly so that someone can manage the deceased person’s estate during the probate process.


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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: Is the guardian of a ward the ward's executor after the ward dies?

Guardians and executors are two distinct roles, and while the guardian may become the executor, the Probate Court will address the issue of who should be the ward’s executor independently of who was previously named as guardian.


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Q: Does real estate that is devised or bequeathed go through probate in Vermont?

Yes, in fact devise and bequest (or bequeath) are terms of art that specifically related to probate assets. Devise means the act of giving property, usually real property (land), by will. Bequest means the act of giving property, usually personal property, by will.

If an asset was transferred to an heir outside of probate, for example a financial account that passed via beneficiary designation, it would not be a bequest in the traditional sense of the word because it is not passing by one’s will. So, all devises and bequests, by definition probate assets, would have to pass through probate in Vermont.


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Q: Does a vehicle have to go through probate in Vermont?

There are several ways for vehicles to avoid the probate process in Vermont. One of the more common methods is to ensure a vehicle is jointly owned, so that upon the death of one owner, title to the vehicle automatically passes to the surviving owner(s). If a vehicle is owned by an individual, a recent law change allows a Transfer on Death (TOD) designation to be added to the vehicle’s title. Under this arrangement, upon the vehicle owner’s death, the vehicle can be re-registered in the name of the TOD beneficiary without having to pass through probate first. Finally, a vehicle can be placed in a trust, although this approach is generally not advised given the simpler approaches above.

See the article: New Law Allows Vehicles to Pass Probate Free on the Articles Page.


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Q: Is a life insurance policy that has a beneficiary designation part of one's probate estate?

If a life insurance policy has a proper beneficiary designation, and the beneficiary is alive to receive the proceeds, then the life insurance proceeds should not be part of the Vermont probate estate. Proceeds from life insurance policies pass via contract, which supersedes the provisions of a will.

Keep in mind that one’s probate estate is different from one’s taxable estate. Proceeds from life insurance policies are usually included in the decedent’s taxable estate, unless the policy is owned by an irrevocable life insurance trust (ILIT).

See the articles: Uses of Life Insurance in Estate Planning, Doubling Life Insurance Proceeds With an ILIT, and Beneficiary Designations Are the Final Word on the Articles Page.


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Q: What is an estate inventory?

An estate inventory is most often used in the context of probate proceedings. It is the list of assets owned by the decedent before death, which will be subject to the probate court proceedings, as compiled by the executor. This might include bank accounts, vehicles, real estate and miscellaneous property. Some assets avoid probate, such as real estate that passes to a joint owner by operation of law or financial accounts that have a valid beneficiary designation. Non-probate assets would not appear on the estate inventory.

Typically, the probate court requests an estate inventory shortly after the executor is named, and then requires regular accountings of what changes, if any, affect the estate inventory. At the end of the probate process, the executor must account for all probate assets listed on the original estate inventory, and any added since then, as well as indicate the proposed distribution plan. Following the probate court’s approval of the final estate accounting, the executor distributes the estate assets pursuant to the distribution plan.


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Q: How long does probate court take in Vermont?

The probate process can be straightforward or contentious and complicated, depending principally on three factors: how large the estate is, the types of assets included, and whether anyone contests the will.  Small and uncomplicated estates usually take 3 – 12 months in Vermont, while complicated estates can take years. The Vermont Probate Courts have said the average probate takes one year.


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Q: What happens if the executor dies after the will maker?

The executor is named by the probate court to manage the probate process. If an executor dies in the midst of carrying out their responsibilities, the probate court will name a new executor to take over. The probate court would likely review the will to see if a backup executor had been named by the decedent. If so, the probate court would likely name that person absent a compelling reason not to. If no backup was named, the probate court would seek to name a willing survivor of the decedent who was in the best position to take over the responsibility.


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Q: What does a "Transfer on Death" designation mean?

A Transfer on Death designation allows the principal owner of an asset, such as a vehicle, to maintain absolute control over the asset until their death. Upon their death, the asset passes to the Transfer of Death beneficiary automatically, without having to go through probate.

The Transfer on Death designation is preferable to adding another person as a joint tenant to the title of an account or a vehicle because joint tenancy ownership has some disadvantages. These include the fact that the joint tenant may wish to sell the asset later when the principal owner wants to hold on to it, or that the joint tenant refuses to sell an asset even though the principal desires to. Resolving these issues can be difficult.

Another benefit Transfer on Death has over joint tenancy is that you can add a Transfer on Death beneficiary and later change your mind and remove them. If you add a joint tenant, you need their agreement later to get them off the title to the asset.

Different states allow Transfer on Death beneficiaries for various assets. In Vermont, they have recently been allowed for vehicles. Similar options, such as a Pay on Death designation, are available for some financial accounts. For deeds to real property, it’s more complicated, and an estate planning attorney should be consulted.


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Q: In Vermont, do vehicles have to pass through probate?

Generally yes, because title to the vehicle must be transferred to the new owner before the new owner can register the vehicle in his or her name. This would normally happen if the vehicle is owned by an individual. If the vehicle is jointly owned, for example with a spouse, the vehicle would pass to the surviving joint owner by operation of law, without having to pass through probate.

When a vehicle is owned by an individual, there are still two ways to avoid having a vehicle pass through probate. The first is to place the vehicle in a trust, such as a revocable living trust. However, this is discouraged by most estate planning attorneys because if you end up in a car accident and the other driver sees that your vehicle is in a trust, often they assume you must be rich, and therefore they hire the best attorney they can to win a big judgment against the “deep pockets.”

The better approach is to leave vehicles outside of your trust even if you have a trust, and instead take advantage of a recent Vermont law that allows a transfer-on-death beneficiary designation to be added to the vehicle title. Upon the vehicle owner’s death, the designated beneficiary may re-register the vehicle in their own name, but because of the addition of the transfer-on-death beneficiary designation, there is no need to transfer title of the vehicle through the probate process.

See the article: New Law Allows Vehicles to Pass Probate Free on the Articles Page.


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Q: What is abatement?

Abatement is a term used in wills and the probate process for a situation where there are insufficient assets in the probate estate to pay all of a decedent’s debts and legacies. The concept is similar to the priority of creditors claims, where certain creditors are paid before others.

When insufficient assets exist, the Vermont probate statutes require that gifts be “abated”, i.e. not paid, in the following order: first, property not mentioned in the will goes unpaid; second, property making up the residuary estate is not paid, even if someone is named to receive the residuary estate; third, general devises and bequests, which are gifts that don’t specify or describe the gift, e.g. “my real estate,” are not paid; and fourth, specific devises and bequests, or gifts of specific real property or personal property. When abatement ends at a certain level, gifts within that level are pro-rated.


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Q: What does "Right of Representation" in a will or trust mean?

Right of Representation is one of three common law survivorship options for passing assets to the descendants of your children that comes into play if a child predeceases you. For example, if you leave assets to three children, but one of your children dies before inheriting, your will or trust should have some default language detailing what percentage of the assets the deceased child’s children will receive.

For each of the following situations, assume there are three children, Peter, Paul and Mary who each inherit one-third of your assets. Peter has one child (Andrew), Paul has two children (Bob and Chris), and Mary has three children (Denise, Eunice and Francine).

Per Stirpes. The most common survivorship method is known as “per stirpes,” which means shares are determined by the number of children at the first level. Under this approach, if Peter and Paul predeceased, but Mary was still living, allocation among children and grandchildren would be as follows: Mary receives her one-third; Andrew receives one-third; and Bob and Chris each receive one-sixth. If all three children had predeceased, Mary’s one-third would be evenly split among her three children, so that each received one-ninth. In short, this approach means that each child receives their one-third share, and if the child predeceases, their share is evenly divided among their children.

By Representation. An alternative approach is known as “by representation,” which means shares are determined by the number of descendants at the first level that has living descendents. This is the same as per stirpes if one or more children are alive, but different if only grandchildren survive. If no children survive, the estate is divided equally among living grandchildren. Thus, Mary’s children do not receive a lesser amount because Mary had more children than Peter or Paul; instead Mary’s children, as well as Peter and Paul’s, each receive an equal one-sixth of the total estate.

Per Capital at Each Generation. An infrequently used alternative is known as “per capita at each generation,” which means shares are determined by the number of descendents at each level. Under this approach, each living child receives their one-third, and at the next generation, all grandchildren inherit equal shares, regardless of whether they have several sibling or no siblings. For example, suppose Peter and Mary predecease. Paul receives his one-third, and the children of Peter and Mary inherit equally, in this case each receives one-quarter of two-thirds, or one-sixth.


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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 long does a person have to contest a will in Vermont probate?

When an executor or other person submits a will and a petition to commence a probate proceeding to the relevant Probate Court in Vermont, they must also send notice of the proceeding to all interested persons. Often the executor will have obtained all of the interested person’s consents to the validity of the will. Interested persons in Vermont include heirs, devisees, legatees, children, spouses, and such other persons as the Probate Court directs. Notice should also be sent to the trustee of any trusts to which assets of the decedent’s estate may be distributed, as well as other fiduciaries representing interested persons, such as a guardian.

If not everyone consented to the validity of the will, the Probate Court will schedule a hearing date no less than 14 days after all interested persons were served proper notice. Anyone contesting the will should file a written answer to the petition prior to the hearing, and may provide an oral answer at the hearing, unless the court directs otherwise. Thus, there is no set number of days allowed to contest a will in Vermont, instead a written answer should be filed with the Probate Court before the first hearing is scheduled.


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Q: How is an attorney paid for probating an estate in Vermont?

Attorneys who engage in probate work in Vermont typically charge by the hour. How much an attorney charges is up to the attorney, but limited by what’s considered reasonable for the work performed. The Vermont Rules of Professional Conduct provide some guidelines for what is “reasonable,” including: (1) the time and labor required, (2) whether taking on the case will preclude taking on other work, (3) fees customarily charged for similar legal services in the area, (4) the amount of money involved and the results obtained, (5) time limitations imposed by the client, (6) the nature and length of the attorney/client relationship, (7) the attorney’s experience and reputation, and (8) whether the fee is fixed or contingent.


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Q: In Vermont probate, what is the priority of creditors' claims?

When the assets in a probate estate are insufficient to pay all creditors claims in full, Vermont probate law states that the executor must make payment in the following order:

  1. Costs and expenses of administration of the estate; then
  2. Reasonable funeral, burial, and headstone expenses, and perpetual care not to exceed $3,800 (exclusive of government payments), and reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him or her; then
  3. Wages due to employees that have been earned within three months prior to the decedent’s death, not to exceed $300 to each claimant; and then,
  4. All other claims, including the balance of wages due but unpaid to employees under #3.

When there is more than one claim in the same class, and insufficient funds exist to pay all claims in the class, no preference may be given to one claimant over another, rather a prorated amount must be paid to each claimant in the class.


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Q: What is the procedure for ancillary probate administration in Vermont?

In Vermont, an interested person begins an ancillary estate proceeding by filing: (1) the ancillary petition signed by the home state fiduciary or other interested person; (2) a list of interested persons; (3) a description of the ancillary property; (4) the filing fee; and (5) an authenticated copy of the will and the probate thereof from the home state court, or other acceptable proof that the will is effective in that jurisdiction. Once the ancillary proceeding has been initiated, the probate process is much the same as a regular probate proceeding.


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