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.
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 $45,000 and there is no real estate.
- 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. You will find a glossary of probate terms near the bottom of this web page.
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.
If a person dies without a will, there are laws specifying how the person's estate will be distributed. See the What if there is no will? section of the "Going Through Probate" After Someone Died web page on the vtlawhelp website for more information.
Depositing your will with the court
You may file your will for safekeeping with the probate court in the county in which you reside. You may also file any amendments to the original will (codicils).
There is a fee to file your will with the court. See the Probate section of the Fees web page for the amount. There is no additional fee to file codicils. If you file a new will to replace an already-filed will, there is a filing fee.
A will filed for safekeeping is kept confidential during your lifetime. Even the fact of its existence is not public information.
- You may access your will during your lifetime.
- Your legal guardian or attorney-in-fact may look at and make copies of your will during your lifetime.
When you die, the court can reveal the existence of the will to anyone who presents a certified copy of your death certificate.
14 V.S.A. § 2, Deposit of will for safekeeping; delivery; final disposition
V.R.P.P. Rule 80.4, Delivery of Will by Custodian; Copy of Will Filed for Safekeeping
If the decedent (the person who died) did not own any real estate other than a timeshare and the estate is worth less than $45,000.00, you can use the small estate procedure to probate the estate. The procedure is governed by Vermont Rule of Probate Procedure 80.3 (scroll down to Rules of Probate Procedure).
To start a small estate case, you must file the following with the court:
- A certified copy of the death certificate.
- A copy of paid bill for funeral expenses.
- The will (if there was one) and any amendments (codicils).
- Petition to Open Small Estate (form 700-00001SM).
- Notice of Appearance (form 700-00148).
- List of Interested Persons for Estates (form 700-00002E).
- Inventory Schedule (form 700-00030).
- Affidavit of Paid & Outstanding Funeral Expenses and Debts for Small Estate (form 700-00402)
- The filing fee, or a request to waive the filing fee. See the Application to Waive Filing Fees and Service Costs web page for information and forms.
Depending on the situation, you may need additional forms. Check with the probate division if you have questions. You can find forms at the bottom of this web page under Small Estates.
Once the court approves the will, you should pay any known debts of the deceased and funeral expenses and then distribute the balance in accordance with the terms of the will, or in accordance with the intestate laws if there was no will.
You should then file the Report of Fiduciary of Small Estate (form 700-00055) with the court stating what debts you paid, and how the funds were distributed. You should also include receipts for anyone who received a distribution from the estate.
You can find more information about the probate process in this publication:
Re-titling or registering a vehicle
See the Vermont Department of Motor Vehicles' Death of Owner web page for information about the requirements for re-titling or registering a vehicle of a person who has died.
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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. This is your promise to administer the estate properly.
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, you should contact insurance companies to find an insurer who writes fiduciary bonds. There will be a bonding fee for this type of surety depending upon the amount of the bond. The fee would be an administration expense which should be paid from the estate.
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 responsibilities as executor or administrator. If you have questions about your duties, consider contacting a probate attorney.
The court will not force you to be executor if you don't want to be one. 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. If you don't want to be appointed executor of the estate, file an Executor's Refusal of Appointment (form PE 25). You will find the form in the Forms section at the bottom of this web page. 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 of something is unclear, consider having an independent appraisal. Examples of property that may need appraisal are coin collections, paintings, objects of art, real estate, and businesses. 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. § 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.
See the Federal Trade Commission's Debts and Deceased Relatives web page for general information about debt collection after someone has died.
The length of probate depends upon the complexity of the case. It could take anywhere from several months to several years. The process could take longer if there is litigation about 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.
Administrator - A person appointed by the court to settle the estate of someone who died without a valid will.
Beneficiary - A person who will receive assets from an estate or a trust.
Codicil - A document that modifies some terms of a will without revoking the remaining terms.
Creditor - A person or entity to whom money is owed. In the context of probate proceedings, a person or entity filing a claim against an estate.
Decedent - A person who has died.
Decree of distribution - A court order setting forth how assets are to be distributed.
Devisee - A person who receives a gift of real property by a will.
Estate - The sum of a person's assets less all liabilities.
Executor - A person appointed by the court to settle the estate of someone who died with a will.
Fiduciary - A person who has a legal or ethical relationship of trust with someone else. In probate court a fiduciary is someone appointed by the court to administer an estate.
Heir - A person who by law is eligible to receive property owned by someone who died without a will.
Interested persons - People who must receive notice of various matters during the administration of an estate. See 14 V.S.A. § 204.
Intestate - The status of the estate of someone who died without a valid will.
Inventory - An accounting of all assets in an estate.
Personal property - All property other than real estate.
Real property - Land.
Revocation - An annulment, cancellation, or reversal. An invalidation of a will.
Surety - One who guarantees that someone else will perform a duty. In the context of probate proceedings, a person or corporation that guarantees that a fiduciary will administer an estate properly.
Testate - The status of the estate of someone who died with a valid will.
To assist with filing an Estate case, you will find a booklet below that outlines the steps and forms involved in the process. It is a general guidance tool to point you in the right direction. For more specific information, please consult an attorney.
**Please Note: There have been recent statutory changes affecting Estates. The booklet has not been completely updated as of yet, so please also consult the Vermont Statutes Annotated for updates.**