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Why do estates have to go through probate? |
The purpose of the probate process is to make sure that an estate is divided and distributed properly. If there is a will, the estate is examined to determine whether the will is legal. If there is no will (this is called an intestate estate), the probate process will establish the correct distribution of the estate. The Probate Court oversees the administration of the estate to insure that the executor or administrator is performing his or her duties correctly, that the laws are being followed, and that the final wishes of the decedent are being honored. The probate process also assures that legitimate debts of the decedent are paid and that title to the decedent’s property is transferred to the new owner. |
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Do I need to file if the estate is small? |
If there is titled property (this means property that has a written document to show who owns it such as motor vehicles, stocks, bank accounts, real estate or mobile homes), it is likely that a probate estate will be necessary. There are special expedited procedures for small estates valued at less than $10,000, or where the estate consists of only a motor vehicle. Contact the court to see if you qualify. |
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What is a Fiduciary? |
In estate cases, a fiduciary is the person appointed by the Probate Court as either the Executor of the estate in cases where there is a will or the Administrator of the estate in cases where the person died without a will. |
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What are my duties as Executor or Administrator ? |
Your duties are to establish the contents of the estate, pay off all valid debts, and distribute the remainder of the estate to the beneficiaries after a decree has been issued by the court. You must also identify and notify all persons who have a legal interest in the estate including heirs, a spouse, beneficiaries, and creditors. The court will inform you of your exact responsibilities when you are appointed as a fiduciary. The Vermont Probate Division puts out a helpful pamphlet entitled "Instructions To Fiduciaries" which you can obtain from any Probate Court or download fromwww.vermontjudiciary.org. If you have more detailed questions about your duties, it is best to contact a lawyer.
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I have been named as executor in a will but do not want to take on the job. What do I do? |
Even though you are named as the executor in the will, the judge will not force you to take on the responsibility if you do not want to. In fact, if you are not sure whether you are able to handle the duties or if you do not have the time needed, it may be best for you to refuse the appointment. Executors who cannot give an adequate amount of time and effort to an estate can damage the estate and open themselves up to liability. You may refuse the appointment by filing Probate Form PE25 “Executor’s Refusal of Appointment” with the court. Once you have refused, the court will either recognize another person named in the will as executor, or appoint an administrator (i.e. a person who is not named in the will, but who has the same duties as an executor).
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How much does it cost to probate an estate? |
Please see the listing of court fees on the General Information Page. The amount of non-court fees will vary depending on the size and value of the estate as well as other factors. If you are seeking specific information as to the entire cost, you should consult an attorney.
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Do I need a lawyer? |
While it is a good idea and may be cost effective to have a lawyer in certain estates, you do not have to have a lawyer to open an estate. Any interested person may file a petition with the Probate Court to open the estate. However, if you are not sure of your duties or your rights, you should get legal advice to avoid mistakes during the probate process and to be sure that your rights are protected.
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How do I go about becoming bonded if I am named as a fiduciary? |
The Probate Division will tell you what kind of bond is required. Sometimes the court “waives” a surety. That means, you simply read and sign the bond before a witness and return it. If a personal surety is required, often you need a financially responsible person to join with you in the obligation of the bond. If you violate your duties and cause a loss, both you and the surety are potentially liable on the bond. If a commercial surety is required, then you will need to locate an insurer who writes fiduciary bonds. Depending upon the amount of the bond, there may be a bonding fee for this sort of surety.
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How do I make a claim against an estate? |
If you have a claim against an estate, you must file it with the Probate Division in which the estate is pending and with the fiduciary. There are time limitations on the filing of claims, after which your claim will not be honored, so it is important to file the claim as soon as possible. You should prepare documentation of your claim for presentation to the court and the fiduciary. You may use Probate Form 34 to make your claim.
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How do I object to a will? |
If you do not believe that the proposed will is valid, you should not sign the “Consent to Allowance of the Will.” You should also seek legal advice. A will contest involves litigation that can be complex and technical. A lawyer can advise you of your rights and your best course of action.
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