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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.
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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.
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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.
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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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How much does it cost to probate an estate? |
Please see the listing of Court fees on the General Information Page. The Court is not in a position to estimate the amount of non-Court fees that may be involved. If you are seeking specific information as to the entire cost, it would be advisable to consult an attorney.
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I am a fiduciary – how do I go about becoming bonded? |
The Court will advise you what kind of bond is required. Sometimes the Court waives a surety. In this case, 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 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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I have a very small estate – does it need to be probated? |
If there is titled property (motor vehicles, stocks, bank account, real estate) it is likely that a probate estate will be necessary. There are special expedited procedures for certain 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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I have been named as executor in a will but do not want to take on the job what do I do? |
The Court will not force you to be executor if you do not want to. In fact, if you are unsure of you 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 an estate can damage the estate and open themselves up for liability. To refuse the appointment of executor, you simply have to inform the Court in writing of your decision to refuse the appointment. Once you have refused, the Court will either recognize another person named in the will as executor, or may appoint an administrator.
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If I have debts at the time of my death, how do they affect the terms of my will? |
Your estate is responsible for any debts that you accrued prior to your death and expenses of settling your estate. These debts must be satisfied before the remainder of your estate can be distributed to your heirs. The priority of the debts is established according to statute. If your estate is not large enough to pay all of the debts, those with highest priority will be paid until the estate is depleted. The debts will first be paid from any amount of cash that is included within your estate. If the cash is insufficient to cover your debts, then personal property or real property may have to be sold. The priority of debt to be paid is set forth in 14 V.S.A. ' 1205.
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If I have set up trusts do I still need to have a will? |
Estate planning experts generally agree that everyone should have a will, even if they have a trust. 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.
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Is there any way to avoid probate? |
It is possible to avoid the necessity of probate. Joint ownership with the right of survivorship and living trusts are common methods of avoiding probate. Each technique has its own benefits and drawbacks. You should consult competent legal advice before affecting a strategy to avoid probate.
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Should I have a will? |
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 should have a will. Similarly, if you have a relative who you choose to prefer but who is not as closely related to you as others, then you also need a will to insure that he or she will receive a portion 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 if you choose to leave them different amounts of your estate because under the statute they would get equal shares. In your will you can also nominate guardians for your minor children and name the person who will settle your estate.
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What happens if the person that I named as executor dies before or with me? |
If the named executor predeceases you and you neglect to name an alternate, then the Court will appoint an administrator to handle your estate. An administrator and an executor are the same except an executor obtains the position by being named in the will and an administrator is Court appointed. The Court will attempt to choose the best person for the job when they appoint the administrator but the Court’s choice may not be the same as yours. Often the Court will give the responsibility to the surviving spouse or next of kin. To insure that your wishes for executor are controlling, you should name a second person in your will if the primary person that you name as executor is unable or unwilling to fulfill the duties. If you did not name a second choice in your will and your first choice becomes unable to be your executor before your death, you can either have your will redrafted or a "codicil" (amendment) added to reflect the changed circumstances and name a new executor.
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What happens to my estate if I did not have a will? |
If you do not have a will at the time of your death, then you are classified as having died "intestate" (without a will). If you are considered "intestate," your property is distributed according to Vermont Statutes. Under the statute, the estate first goes to the spouse and offspring (biological and adopted); if there is no spouse, then the estate is divided between offspring; if there are no children, grandchildren, or great-grandchildren, then the estate passes to the parents of the decedent; if the parents are no longer living, then the estate is divided between any siblings and so on until all relatives of the deceased have been exhausted at which point the estate escheats (goes to) the decedent’s town of residence. Many people fear that the state will take their estate if they die without a will. This is not true and it is very rare for an estate to escheat. The State is obligated by law to make every possible effort to find relatives of the decedent before allowing the estate to escheat.
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What is involved in probating an Estate? |
The first event in probating an estate is the filing of a petition to open the estate. The Court will have a hearing on this petition, examine the will to determine its validity, and formally recognize the executor. If there is no will, the Court will appoint an administrator to handle the estate. The executor/administrator then has to determine the assets of the estate, the debts of the estate, and the beneficiaries of the estate. Accounts must be filed with the Court annually so that the estate can be overseen. The debts are paid according to statutory priority and once the debts have been taken care of, the Court approves finalization of the estate and the remainder of the estate is distributed to the beneficiaries as per the decree of the Court.
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What is the Statute for License to Sell and Convey Real and Personal Estate? |
The Vermont Statute is 14 VSA Chapter 75, (Section 1611 et. seq.) at Vermont Statutes Online.
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What is the Vermont Statute for Decrees of Distribution or Partition? |
The Vermont Statute is 14 VSA Chapter 77, (Section 1721 et. seq.) at Vermont Statutes Online.
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What is the Vermont Statute for Descent, Omitted Issue, or Lapsed Legacies? |
The Vermont Statute is 14 VSA Chapter 45, (Section 551.et.seq) atVermont Statutes Online.
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What is the Vermont Statute for Executors and Administrators? |
The Vermont Statute is 14 VSA Chapter 61, (Section 901 et. seq.) at Vermont Statute Online.
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What is the Vermont Statute for Inventories, Appraisals, and Accounts? |
The Vermont Statute is 14 VSA Chapter 63, (Section 1051 et. seq.) atVermont Statutes Online.
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What is the Vermont Statute for Probate Procedure for Construction of Wills? |
The Vermont Statute is 14 VSA Chapter 3, (Section 101 et. seq.) atVermont Statutes Online.
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What is the Vermont Statute for Settlement of Claims? |
The Vermont Statute is 14 VSA Chapter 66, (Section 1201 et. seq.) atVermont Statutes Online.
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What is the Vermont Statute for Small Estates? |
The Vermont Statute is 14 VSA Chapter 81, (Section 1901 et. seq.) atVermont Statutes Online.
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What is the Vermont Statute For Suvivors and Spousal Rights? |
The Vermont Statute 14 VSA Chapter 41 and 43 (Sections 401 and 461 et.seq.) at Vermont Statutes Online.
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What is the Vermont Statute for Wills? |
The Vermont Statute is 14 VSA Chapter 1, (Section 1 et. seq.) atVermont Statutes Online.
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What type of property does the fiduciary need to have appraised? |
The Executor or Administrator may state the estimated fair market value on the inventory. If the property is important or ambiguous in value, 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 remove controversy by the heirs who have different opinions of the value. In small estates where the interested persons are in agreement as to value, it is unlikely that formal appraisals are necessary.
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What type of time line is there involved with the probating of an estate? |
Like many things in life, this will depend on the complexity of the estate. The average time for closing an estate is one year. The length of probate depends, in part, upon whether the executor advertises in the paper for creditors thereby establishing all creditors within a period of four months after publication. Also if there is any litigation concerning the estate, the process can be further slowed.
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Who can make a will? |
According to 14 VSA §1, a person of age and sound mind may devise, bequeath and dispose of his estate, real and personal, and of any right or interest which he has in any real or personal estate by his last will and testament. This means that anyone over the age of 18 (or an emancipated minor) and who is mentally competent is allowed to make a legally binding will.
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Who should I name as my executor? |
The person that you name as executor will have responsibility entrusted to them at the time of your death. It is important that you choose someone who you know is trustworthy, responsible, thorough, willing to consult experts when they don’t understand something, and prompt with getting things done. It is in the best interest of both the estate and the executor that the named executor has these traits to avoid problems with the distribution of the estate. The person that you appoint does not have to be a member of your family if you feel that they are not suited to the job. Some people choose to appoint professionals to be their executor to minimize stress on their families and make sure that tasks are preformed correctly.
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Why do estates have to go through probate? |
The probate process is a safety measure for the distribution of property. By going through probate, the estate is examined to determine the legality of the will, or in the case of intestacy, to establish the correct distribution of the estate. The Probate Court oversees the administration of the estate to insure that the executor or administrator is correctly performing his or her duties, 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 converted to the new owner.
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