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Vermont Probate Division
Frequently Asked Questions
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Adoptions
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 Can my new spouse/partner adopt my child if I cannot either locate or gain the consent of their other biological parent? |
It is possible for the non-custodial parent’s parental rights to be terminated by the Court if consent cannot be gained. You would have to file a petition with the Court for the termination of parental rights and then a hearing on the issue would take place. While it is within the power of the Court to terminate a person’s parental rights without their consent, the criteria are stringent. 15A VSA §3-504. Before you petition the Court for termination of the other biological parent’s parental rights, it is best to make the fullest possible effort to gain their consent. An attorney can be an invaluable help to you in this situation.
| | How long does the adoption process take? |
Every case is different so there is no single answer. Under Vermont law, the child must reside with you for six months before the adoption can be finalized. So if you are diligent in the filing of the petition to adopt and all other required paperwork and duties, it is foreseeable that it could be only six months between placement and adoption in non-relative adoptions. In the case of stepparent/partner adoptions or near-relative adoptions where the child has already been in the home, the process may be faster. The time frame will depend on timely filing of required paperwork.
| | I am a foster parent and want to adopt my foster child – how does this affect the adoption process and timeline? |
Since the minor has already resided with you for a period of time the finalization of the adoption may take place more quickly than an adoption where the child has just been placed in the home and must reside there for 6 months before finalization. If you are a foster parent and you want to know more about adoption, contact the agency which licensed you as the foster parent or which placed the child with you.
| | I plan to adopt a child from a foreign country – does this change how I go about the adoption process? |
This does not impact the part of the adoption process that takes place in the Probate Court. There may be significant changes in the earlier stages of the adoption on which the child placement agency or attorney that you are working with can advise you.
| | If I have a criminal record will I be unable to adopt? |
Maybe. It depends on what the crimes where and when they occurred. The Court uses its discretion to make this decision based on what it believes is in the best interest of the child. Therefore, the Court may allow an individual who had a petty criminal infraction several years previously to adopt but not allow an individual who has a violent criminal record to adopt.
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Adult and Minor
Guardianships
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| Are there any alternative to guardianship? |
When an individual needs assistance in managing his or her personal or financial affairs, there are several alternatives to establishing a guardianship. Some of these alternatives are:
· setting up a power of attorney
· establishing a trust
· Protective Services for Mentally Retarded Persons
· SSI Representative Payee
· Citizen Advocacy
| | Can a guardianship be modified or terminated? |
The ward or any person interested in the welfare of the ward may, at any time, file a motion for termination or modification of the guardianship. Annually, each ward under guardianship and his or her lawyer receives notice from the Court advising the ward of the right to file a motion for termination or modification of the guardianship. When such a motion is received in the Probate Court that approved the guardianship, notifications are sent to all interested persons, a hearing is held and based on the information presented, and the Probate Judge will determine whether changes are appropriate.
| | Does a guardian have to provide financial reporting to the Courts? |
If the guardian has been granted financial, contract or property power, a report of the income, expenses and assets held by the ward must be filed with the appointing Court annually. For purposes of financial reporting, it is necessary to keep separate accounts for the ward and to record income, expenditures, and any activity that changes the ward’s personal estate or real estate. If the ward’s individual financial transactions are recorded, preparation of the annual summary is not too difficult. General assistance is always available through the Court. If you are becoming a guardian you should review the guardian’s account form and instruction sheet to become familiarity with your accounting responsibility.
| | Does a guardian need to be bonded? |
It is usual in Vermont for guardians to be bonded. This means that before the Probate Court appoints the guardian, he or she must file a bond, using theGuardian’s Bond (Form 79). The bond stands as an assurance that the guardian will perform the duties according to law. Although being bonded does not require the actual deposit of funds, it may be necessary to have an insurance company act as guarantor for the guardian’s obligations. This service can be arranged through local insurance companies at a reasonable fee. The necessity of a bond often depends upon the size and nature of the assets in the guardianship.
| | How might my relative grant a Power of Attorney? |
Both parties involved must agree to the Power of Attorney. Available at Probate Court is the pamphlet "Taking Steps To Plan for Critical Health Care Decisions" which is published by the Vermont Ethics Network. Forms are available online atwww.vtethicsnetwork.org. This pamphlet contains the form for a Durable Power of Attorney for Health Care, which gives the person with the power of attorney the authority to make health care decisions of the other person when they are unable to make them for themselves. Concerning financial powers of attorney, you should seek competent legal advice from a Vermont attorney. A worthwhile pamphlet entitled "Taking Charge" is available on line with forms from the Vermont Bar Association at www.vtbar.org. A financial power of attorney is a significant legal step which should be considered carefully.
| | I am the guardian for a minor’s property - how do I become bonded? |
The Court will advise you what of bond is required. Sometimes the Court waives a surety. In this case, you simply sign the bond 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 should speak with insurance companies to locate an insurer who writes fiduciary bonds. There will be a bonding fee for this sort of surety depending upon the amount of the bond.
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Changing a Name
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| I want to go back to using my maiden name. Do I need to do anything? |
You do not have to go through a legal name change to go back to using your maiden name. However, if you changed your legal documentation to reflect your married name and want to have your maiden name on it, you may have to secure a Court order to return to your maiden name. If you are in the process of a divorce, the Family Court may order your name changed back to your maiden name.
| | How much will it cost to change my name? |
Name changes are relatively inexpensive and simple. The filing fee is $131.25. | | What is the Vermont Statute for changing a name? |
The Vermont Statute for Changing a name is 15 VSA Sec. 811-816 and can be found at Vermont Statutes Online
| | What requires an official name change? |
Common everyday usage does not require a legal change of name. If you decide that you want to start calling yourself a different name, you are free to do so, as long as it is not for an illegal purpose. A legal name change is required when you want to start doing legally binding business under your new name or use the new name on official documentation, such as a passport.
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Emancipations
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| Are you required to give the names and address of parents of custodians if known? |
The law requires that you list the name and address of your parents if known. If the address of your parent(s) is unknown, please attach a separate sheet of paper and explain all the steps you have taken to try to locate a good address. The law requires that notice of the hearing on the emancipation be given to your parents and to any other person or agency who has custody or guardianship of your person. If a petition is pending concerning your custody, such as a petition for delinquency, unmanageability, or neglect in any Court, you must list the name of the Court and the kind of petition that has been filed.
| | Does emancipation mean the minor can do all the things adults can do? |
No. Any legal requirement that has and age specific restrictions (drinking age, voting age, etc.) are still effective to limit the actions of the emancipated minor. On the other hand, the minor may make contracts (rental leases, etc.) as any adult.
| | How does a child become emancipated? |
The Probate Court may grant a decree of emancipation after notice to the parents and a hearing. To file a petition for emancipation, contact the Probate Court or go to the form link on the emancipation web page to get an emancipation petition and instruction sheet.
| | How long do you need to be a Resident of Vermont in order to petition for Emancipation? |
To petition for Emancipation the minor must be a resident of the State of Vermont for a period of at least three (3) months.
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Estates and Wills
| As Executor or Administrator what are my duties? |
In short, your duties are to establish the contents of the estate, pay off all valid debts, and to distribute the remainder of the estate to the beneficiaries when a decree of the Court has been issued. The Judge will inform you of your exact responsibilities when you are appointed executor or administrator. The Vermont Probate Court System 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 either a lawyer who deals with probate or the Probate Court.
| | Do I need a lawyer to open an estate? |
While it is advisable and cost-effective to have a lawyer in certain estates, it is not required that you 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 unsure of your duties or your rights, it is best to obtain legal counsel to avoid mistakes during the probate process or to assure that your rights are protected.
| | How do I go about objecting to a will? |
If you disagree that the will being proposed is valid, you should seek legal advice. If you are in possession of a more recent will, you should present it to the Probate Court. A will contest is litigation which can be complex and technical. A lawyer can advise you about your rights and your best course of action.
| | How do I make a claim against an estate? |
A claim against an estate must be filed with the Probate Court in which the estate is pending and with the Executor or Administrator. There may be a time limitation, after which your claim will not be honored, so it is important to file your claim as soon as possible to avoid being barred by a time limit. You may seek a written negotiated settlement of the claim with the Executor or Administrator. There are special rules concerning evidence of such claims, so you should prepare documentation of the claim. Probate Court Form 34 may be used to make your claim.
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Testamentary Trusts
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| I feel that the trustee is mishandling the trust – what can I do? |
If you are concerned about a testamentary trust, then you can contact the Probate Court in person or in writing expressing your concerns. If the trust you are concerned about is not a testamentary trust, it may fall outside of the Probate Court Jurisdiction and you should contact an attorney about the best course to pursue.
| | I want to set up a trust – what do I do? |
The Probate Court deals only with testamentary trusts, which are created by will. If this is the type of trust you are interested in creating, you should discuss it with your attorney when you have your will drawn up. If you are interested in Inter Vivos Trust (also known as living trusts) it falls under the jurisdiction of the Superior Court. Please consult an attorney for further information concerning this subject.
| | If I set up trusts, do I still need a will? |
It is always a good idea to have a will even when you have trusts. Many times people obtain property after trusts are set up and the new property may not be included in the trusts. If there is no will, the un-included property can only pass according to statute, which may not coincide with your wishes. Also if the trusts were improperly set up and are not considered valid, then, without a will, the property can only pass according to statute.
| | What are the Vermont Statutes for Trusts? |
The Vermont Statutes are 14 VSA Chapter 105 (Secs. 2301 - 2329) and (Sec.2314 - Concerning Replacement of Intervivos Trustee) at Vermont Statutues Online.
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