Probate Administration

• What is Probate?
  
  
• What is the Probate process in Vermont?
  
  
• How long does Probate take in Vermont?
  
  
• What are some ways to avoid Probate?

Every day in Vermont, someone is asking these questions, either because a loved one has recently died or because death is near. If you find yourself looking for answers to these questions, keep in mind that every situation is unique, and general information may or may not apply to you.

Nonetheless, if a loved one has recently died, it’s important to understand the basics of the probate process in Vermont. This website addresses probate basics, as well as general and advanced estate planning, trust administration and many other aspects of estate planning in Vermont. When you are ready to speak to NEET probate attorney Adam Bartsch about probate or estate planning in Vermont, visit the Contact Us page to set up a free initial consultation. NEET is a probate law firm focused exclusively on probate and estate planning legal issues.

Because estate planning can be complicated, this website aims to give you a general understanding of various estate planning concepts, including estate taxes, wills, trusts, advanced planning, asset protection, probate administration and trust administration, among many others. Please see the Disclaimer Page for more information.

Prefer to come in immediately to discuss your particular situation? Then download and complete the appropriate Initial Consultation form on the Forms Page and call NEET at (802) 985-8811 to schedule a free initial consultation.

Do you have questions about working with an estate planning attorney? Find answers to clients' frequently asked questions on the About NEET Page.

Below you will find links to helpful articles on probate in Vermont, the NEET Blog addressing current probate issues, and FAQs about Vermont probate.

What is Probate?

Probate administration, sometimes referred to as the probate of wills, is the most common process for wrapping up a deceased person's affairs. In Vermont, the process involves validating a will, accounting for and protecting the decedent’s assets, paying legitimate claims against the decedent’s estate, and distributing the estate assets to the decedent’s heirs and beneficiaires. Although seemingly not complicated, the probate process often addresses unexpected issues and meeting the probate court’s procedural requirements can be difficult if you are not familiar with the probate process.

The Probate Process in Vermont

When a person dies, if a will, sometimes called a last will and testament, exists, it must be filed with the probate court in the Vermont county where the decedent was a resident. Provided the probate court determines the will to be valid, the process is referred to as a testate estate, and the probate court will oversee the probate process to ensure that the will’s provisions are carried out according to the will’s provisions and the probate court’s rules. If no will exists, or if a will was found to be invalid by the probate court, the process is referred to as an intestate estate. Under intestate rules, distribution of the decedent’s assets is dictated by probate law, as contained in Vermont statutes. Various probate forms are required under either process, which must be filed under specific deadlines as determined by the probate court.

Testate Administration

If the deceased had a valid will, the will must be submitted to the Vermont probate court in the county where the decedent lived. Usually, a will names an executor who, with the probate court's approval, manages the decedent's property and oversees the probate process.

The executor’s first duty is to secure the decedent’s estate, which may include taking custody and protecting the decedent’s assets. This initial process could also entail having items appraised or placed in storage until distribution. An executor must take reasonable steps to prevent destruction or degradation of the probate estate assets, or be prepared to accept liability for failure to do so. The executor also has a limited time to file an inventory with the probate court that lists all known assets, or shares of assets, owned by the decedent at the time of death, which is known as the probate estate.

After the assets have been gathered and listed, the executor is charged with determining the extent of any debts owed by the decedent at the time of death. Additionally, the executor must list expenses incurred after death, such as appraisal fees and other costs related to administration of the probate estate. Known creditors must be contacted, and advertising must be conducted to alert other creditors. The executor is also responsible for filing all Vermont and Federal tax returns both for the decedent and the decedent’s estate.

After the decedent’s debts and tax are paid, the executor must file a final accounting with the probate court that lists the assets comprising the probate estate, any income applied to or expenses charged against the probate estate, whether any assets were sold or exchanged for other assets, and the proposed final distribution to beneficiaries. If the probate court approves the distribution plan, then after all of the probate assets have been distributed, the executor must file a Closing Report with the probate court.

Intestate Administration

If the deceased did not have a will, or the probate court determined that the will was not valid, a petition must be filed with the Vermont probate court in the county where the decedent lived.  When a person dies without a will in Vermont, the state's new intestacy laws come into effect, meaning that Vermont has a plan for how a decedent's property will be distributed regardless of what the decedent might have verbally stated.

In Vermont, any interested party may petition the probate court to open the estate. The court will then hold a hearing and appoint an administrator to manage the decedent's property and oversee the probate process. The administrator’s duties are largely the same as the executor’s under a testate estate, however, rather than following the provisions of a will to determine final distribution of assets, Vermont’s intestacy laws determine how the assets will be distributed.

How Long Does Probate 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. 

What Are Some Ways to Avoid Probate?

Some assets do not need to go through probate even where a will exists, or where the decedent died intestate.  Examples include property owned as a joint tenant, retirement accounts and life insurance policies that include a beneficiary designation, bank accounts that have a "pay on death" designation, and property funded into a trust.

If the decedent had a revocable living trust, usually there is no need for probate in Vermont because the decedent's property passes according to the terms of the trust, provided the property was funded into the trust prior to the decedent's death.  Property left outside the trust would usually pass through probate then be placed in the trust. For additional information on revocable living trusts, see Estate Planning.

Related Articles:

                Probate and Intestacy Are Readers’ Biggest Concerns     (Oct. 2010)

                New Rules for Death and Taxes     (Jan. 2010)

               New Law Allows Vehicles to Pass Probate Free     (Dec. 2009)

                Overview of Vermont’s New Rules for People Dying Without a Will     (Oct. 2009)

                Vermont Intestate Rules     (May 2006)

Relevant NEET Blog Categories:

Executor, Fiduciaries, Probate, Wills

FAQs – Probate Administration

¶ What is Abatement?

Abatement occurs when there are insufficient assets in the deceased person's estate to cover debts and obligations in the will and thus certain obligations must be reduced or eliminated.  In Vermont, absent an abatement clause in the will, abatement applies first to property not disposed of by the will, then residuary devises and bequests, then general devises and bequests, then specific devices and bequests. A will may also state the priority by which to abate probate assets.

¶ What is Administration?

Administration is the process of collecting and managing a decedent's property, paying taxes and creditors and distributing the remaining property to beneficiaries or heirs.

¶ What is an Administrator or Administratix?

A person appointed by the court to administer an estate, in the capacity of a fiduciary. If the fiduciary was named in the will, the person is called the executor, but if the court appoints a person not named in the will to fulfill this role, the person is known as the administrator. Historically, women administrators have been referred to as an administratix.

¶ What is the Alternate Valuation Date?

The alternate valuation date is a date six months after the decedent died at which time the decedent's estate may be valued. If the alternate valuation date would save taxes versus a valuation based on the decedent's date of death, the alternate valuation date may be used for estate tax filings.

¶ What is Ancillary Administration?

Ancillary administration refers to the administration of a decedent's estate in a state that is not the decedent's domiciliary state. For example, if a Vermont resident owns real property in New York, there may be a need for an ancillary administration (probate process) in New York upon the death of the property owner.

¶ What is a Beneficiary?

A beneficiary is someone who receives property according to the terms of a will or receives equitable title to property in trust according to the terms of a trust.

¶ What is a Bequest?

A bequest is a gift of personal property in a will. See also Devise and Legacy.

¶ What is a Codicil?

A codicil is an amendment to a will.

¶ What is a Devise?

A devise is a gift of real property (real estate) in a will. See also Bequest and Legacy.

¶ What is a Devisee?

A devisee is someone named in a will who is to receive real property (real estate) from the decedent’s probate estate.

¶ What is a Disclaimer?

A disclaimer is a person's refusal to accept rights or interest in specific property offered to the person. A successful disclaimer must be done within nine months, and must follow specific requirements, so it is important to discuss with a CPA or attorney when contemplating a disclaimer.  When property is disclaimed, it passes as if the disclaimant were not alive at the time.

¶ What is Domicile?

Domicile is one's permanent state of residence.

¶ What is a Donor?

A donor is someone who makes a gift.

¶ What is an Estate?

One's estate is the total of your assets, debts and other obligations. Estate can be used in different contexts, for instance probate estate (all assets passing through probate) and estate tax estate (all assets subject to federal or state estate tax).

¶ What is an Executor or Executrix?

An executor is a person named in a will, or appointed by the court, that is in charge of administering the deceased person's estate during the probate process. Executors are usually reimbursed for expenses related to the position, including hiring an attorney to assist with the probate process.  The will may also allow the executor to be paid compensation for duties performed. Historically, women executors have been referred to as an executrix.

¶ What is a Fiduciary?

A fiduciary has a legal duty to act in the best interest of another, for example a trustee has fiduciary obligations to the beneficiaries.  Fiduciaries generally have a duty of loyalty, a duty of care and a duty to account.

¶ What is the Gift Tax?

A tax imposed on transfers of money or property during the giver's lifetime.

¶ What is a Guardian?

A guardian is legally responsible for the care and well being of another person, usually a minor. Guardians are appointed by the court, but the courts will usually honor a parents selection of a guardian in the parent's will, provided there are no compelling reasons not to appoint that person.

¶ What is a Guardianship?

A guardianship is the court-managed process for overseeing the affairs of a minor child or incompetent person.

¶ What is an Heir?

An heir is someone who receives property under a state's intestacy laws.

¶ What is Insolvency?

Insolvency refers to a situation where a person's total assets are insufficient to pay off the person's debts.

¶ What is an Interested Person?

An interested person is someone who likely has a close relation to the decedent or the probate process. While they are interested persons, they must receive notice of various court filings and related matters. At the beginning of a probate proceeding, the class of interested persons usually includes heirs, devisees, legatees, children, spouses, and other persons named by the probate court. The designation of interested person may be removed from a person, or a person may be added as an interested person during the probate process, as determined by the probate court.

¶ What is Intestate?

A person who dies without a valid will is said to have died intestate. Intestate also refers to the Vermont rules applicable for probating an intestate person’s property, commonly referred to as the intestacy rules. See also Testate.

¶ What is an Inventory?

An inventory is an itemized list of assets owned by the decedent at the time of death.

¶ What is Joint Tenancy?

Joint tenancy is a form of ownership where two or more people own property together, and if one of the joint owners dies, their share passes to the remaining joint owners. A form of joint tenancy for married couples is known as tenancy-by-the-entirety.

¶ What is a Legacy?

A legacy is a gift of money in a will. See also Bequest and Devise.

¶ What is a Legatee?

A legatee is a person named in a will who is to receive personal property from the decedent’s probate estate.

¶ What are Letters of Administration?

Letters of Administration is a document issued by the probate court appointing the administrator of an estate where the decedent died without leaving a will.

¶ What are Letters Testamentary?

Letters Testamentary is a document issued by the probate court appointing the executor of an estate where the decedent died leaving a will.

¶ What is the Marital Deduction?

The marital deduction is the amount that one spouse can pass to the other free of state or federal taxes.  Currently, the marital deduction is unlimited, meaning that a spouse can pass an unlimited amount of money or assets to their surviving spouse tax free.

¶ What is Personal Property?

Personal property is anything that is movable, such as the contents of a home, automobiles, equipment and cash.

¶ What is a Power of Appointment?

A power conferred by a donor to a person by language in a deed, will or trust allowing the person to select one or more recipients of the donor's estate or income.

¶ What is Probate?

Probate has come to mean the process of proving the validity of a will and administering the related assets in conjunction with the probate court's oversight until final distribution of the deceased person’s assets to their beneficiaries or heirs. This process, which can last either a few months or several years is known as the probate process. The process of taking assets through the probate court is known as probating assets. Assets that must pass through probate are called the decedent’s probate estate, or the estate inventory.

¶ What is Real Property?

Real property is land, also known as real estate, and anything that is permanently attached to the land, such as a home, office building or farm barn.

¶ What is Tenancy-by-the-Entirety?

Tenancy-by-the-entirety is a form of joint tenancy for married couples.

¶ What is Tenancy-in-Common?

Tenancy-in-common is a form of ownership where two or more people own property together, but if one joint owner dies, the property passes to decedent's beneficiaries or heirs, and not the other joint owners.

¶ What is Testamentary Capacity?

Testamentary capacity is the minimum level of mental competence a will maker must possess when writing a will. Generally, a will maker must be able to: (1) understand the nature and extent of their assets; (2) identify the natural objects (usually children) of his or her bounty; and (3) understand the nature of a will and express the intention to provide for the disposition of his or her assets.

¶ What is a Testamentary Trust?

A testamentary trust is included in a will and comes into being only after the will maker dies and the assets pass through probate first.

¶ What is Testate?

A person who dies with a valid will is said to have died testate. See also Intestate.

¶ What are a Testator and Testatrix?

A person who dies with a valid will. A testator is male; a testatrix is female. Over time, testator has come to be used for both males and females who die with a valid will.

¶ What is Undue Influence?

Undue influence refers to someone exerting pressure on a will maker to write their will a certain way, usually to the benefit of the person exerting the undue influence.

¶ What is a Will?

A will is a written document (or sometimes an oral declaration) providing instructions for who should receive your property after you die. A will usually names an executor to manage the Vermont probate process and a guardian to raise your minor children.  In Vermont probate courts, wills must be signed and properly witnessed by two individuals to be valid.  A will has no effect until the drafter's death, at which time the will must be submitted to the Vermont probate court and the probate process begun.

¶ What is a Will Contest?

A will contest occurs when someone objects to the validity of a will or a will's dispositions.  Will contests tend to slow down the probate process considerably and make the process far more expensive, because attorneys are usually hired to defend or attack the will, which often focuses on the competency of the will maker at the time the will was drafted.