The probate process is a safety measure for the distribution of property when someone dies. The probate division examines the legality of a will. It then oversees the administration of the estate to ensure that the executor or administrator correctly performs their duties, follows laws, and honors final wishes. The probate process also assures payment of debts and converts property titles to the new owners. If there is no will, the probate process establishes the correct distribution of the estate.
A will allows you to determine where your assets go after your death. If you do not have a will, then your property will be distributed according to state law. Generally, the law passes your estate to your closest biological relatives and does not take into account your relationship with them or their circumstances. Therefore, if you wish to leave property to a friend or charity, you must have a will. Similarly, if you would like to leave a portion to someone who is not a close relative, you need a will to ensure that they receive a part of your estate. Finally, if you have one child who is well off and another who is in need of financial help, you may need a will to leave them different amounts of your estate. In your will you can also nominate guardians for your minor children and name the person who will settle your estate.
You may file your will for safekeeping with the probate court in the county in which you reside. You may also file any codicils (amendments to the original will). There is a filing fee. A will for safekeeping is confidential during your lifetime. Only you may retrieve the will, and you must provide the clerk with identification to do so. Upon your death, the named executor must provide the court a certified copy of the death certificate. The court cannot give anyone any information about the will without a certified copy of the death certificate.
Many people fear that the state will take their estate if they die without a will. This is not true, and it is rare for an estate to go to the town. State law requires every possible effort to find relatives of the deceased (also called the decedent) before allowing the estate to pass to the town.
The probate court handles several different types of estates.
- An intestate estate is the estate of someone who died without having made a will.
- A testate estate is the estate of someone who left a will.
- A small estate involves a simpler process when the estate is valued under $10,000, there is no real estate, and there is a surviving spouse, children, or parents.
- An estate may be considered ancillary if the deceased resided outside of Vermont but owned property in the state.
All estates are covered in Title 14 of Vermont Statutes Annotated.
To open an estate, you must file a petition along with an original will and any codicils (amendments), certified death certificate, list of interested parties, consents of all interested parties, bond, appointment of a resident agent, and the filing fee.
You need to open an estate only if there are assets in the sole name of the deceased. If the only asset is a vehicle, for example, and there is a surviving spouse, you may not need to open an estate. For more information, call the probate court in your county or contact a lawyer.
While it is advisable and 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 division to open the estate. However, if you are unsure of your rights or duties, it is best to get legal counsel to avoid mistakes during the probate process and to assure protection of your rights.
The court may have a hearing on the petition. The court examines the will to determine its validity and formally recognize the executor. If there is no will, the court appoints an administrator to handle the estate. The law gives surviving spouses and next-of-kin priority for appointment as administrators, provided they are suitable. The court will appoint the person best suited in accordance with the priorities set by law.
Before the court appoints you as administrator or executor of an estate, the court will require a bond:
If a personal surety is required, you may 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. Sometimes the court waives a surety. In this case, you simply read and sign the bond before a witness and return it.
As executor or administrator, your duties are to establish the contents of the estate, pay off all valid debts, and distribute the rest of the estate to the beneficiaries after the issuance of a court decree. You must file an inventory with the court within 30 days of your appointment. Until the estate is closed, you must file reports with the court annually to help the court monitor the estate.
At appointment, the judge will inform you of your exact responsibilities as executor or administrator. If you have more detailed questions about your duties, please contact either a lawyer who deals with probate or the probate division.
The court will not force you to be executor if you do not want to act as one. In fact, if you are unsure of your ability to handle the duties or lack 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 the task may damage the estate and open themselves up for liability. To refuse the appointment of executor, you should inform the court of your decision in writing. Once you have refused, the court will either recognize another person named in the will as executor or appoint an administrator.
The executor or administrator must state the estimated fair market value on the inventory. If the value is unclear, it may make sense to have an independent appraisal. Examples of property that may need appraisal are coin collections, paintings, objects of art, real estate, and businesses. Sometimes an appraisal can resolve controversies among heirs who have different opinions of the value of certain property. In simple estates formal appraisals may be unnecessary. If there is no appraisal, the executor or administrator has sole authority for assigning value to assets, subject to formal objections when the inventory is filed.
Vermont law outlines the order in which expenses and debts are paid (14 V.S.A. section 1205). The estate must pay the expenses of administration and any debts of the deceased. These expenses and debts must be satisfied before the remainder of the estate can be distributed to heirs. If the estate is not large enough to pay all the expenses and debts (making it an insolvent estate), those with highest priority are paid first. Cash assets are used to pay expenses and debts within the estate first. If there is not enough cash to cover all expenses and debts, then personal property or real property may have to be sold.
The court then approves finalization of the estate and orders distribution of the rest of the estate to the beneficiaries.
The length of probate depends upon the complexity of the case. It could take anywhere from several months to several years. For example, the process could take longer if there is litigation concerning the estate, if there are creditors involved, or if there is real estate to be sold.
For more on the cost of probating an estate, please see the listing of court fees. The court is not in a position to estimate the amount of other fees you might incur. If you are seeking specific information about the entire cost, please consult a lawyer.
If you disagree with the validity of a will, you should seek legal advice. If you are in possession of a more recent will, you should present it to the probate division. A will contest can be complex and technical litigation. A lawyer can tell you about your rights and your best course of action.
If you have a claim against an estate, you must send it to the executor or administrator and file a copy with the court. There may be a time limitation, so it is important to file your claim as soon as possible. Executors or administrators have authority to allow or disallow claims. 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. The process can be very complicated and often requires legal assistance.