Before the assets from the estate of a decedent can be transferred to the decedent’s beneficiaries or heirs, the estate must go through probate. Probate is a court-supervised process for paying a decedent’s debts and distributing the assets in their probate estate to family, friends, and institutions according to the terms of their will, if any. In Vermont, probate is governed by the Decedents’ Estates and Fiduciary Relations chapter of the Vermont code. 14 V.S.A. § 101 et seq.
The first step in initiating a probate case is to file a petition along with the will and codicils (if any), certified death certificate, list of interested parties, consents of all interested parties, bond, appointment of a resident agent, and the filing fee.
In Vermont, the probate division of the Superior Court serves as the probate court, and there is one in each county. The probate court in the county where the decedent last resided has jurisdiction over the decedent’s estate.
Once the probate case has been initiated, the court will review the will and make sure that it is valid. At this point, anyone who has an interest in the will and does not believe the will is authentic can object to probating the will. The court is obligated to listen to arguments about the validity of the will as long the arguments are based on valid legal grounds such as incapacity or fraud. If the will is determined to be valid, it will be admitted to probate. The court will also formally recognize the executor, giving them the authority to move forward with the tasks required to settle the decedent’s estate. The executor will have to post an estate administration bond.
The duties and responsibilities of the executor, also referred to as the administrator or personal representative, are to identify and appraise the contents of the estate, pay valid debts, expenses, and taxes, and distribute the rest of the estate to the beneficiaries after the issuance of a court decree. The probate court judge oversees this estate administration process and the executor is required to file reports with the court and comply with any orders of the court.
There are special, expedited procedures available to small estates. With the Small Estates Letters of Administration process, if the estate’s value does not exceed $10,000 and debts are paid, the estate can be settled and assets distributed using a simplified process. 14 V.S.A. §§ 1901-1903
Even though probate is a legal process, most of the activities are completed outside of court. In fact, other than at the beginning of the process and at the end when the executor seeks permission to close the estate and distribute assets, there is rarely a reason to go to court. However, if there are disagreements among the parties, the parties may have to settle the issues in court through probate litigation.
One type of probate dispute that can result in litigation involves disagreements over the validity of the will. For example, a family member may feel that the will is fraudulent or improperly executed and as a result initiates will contest litigation. Fights between the executor and beneficiaries often must be settled in court. Probate litigation even arises if someone claims to be an heir. The court may require the person to prove their relatedness during a kinship hearing.
While there are some instances in which probate litigation is based on frivolous claims, probate litigation is often needed to resolve real issues that will have a significant impact on the probate proceeding. It can also cause significant delays in probate and added expense to the estate.
The requirement to settle the estate through the probate process is also required for intestate estates. The major difference is that asset distribution is based Vermont’s law of intestate succession. 14 V.S.A. §§ 301-338. This means that instead of the assets being distributed to beneficiaries as described in their will, assets are distributed to the decedent’s legal heirs. Vermont’s intestate succession law codified a framework for how most people would want their estate distributed. If a decedent leaves a surviving spouse and children, they are the primary heirs and are entitled to inherit. In the absence of either, Vermont law spells out which relatives would be inherit.