PART 1 Wills and Probate of Wills

Cross References

Cross references. Estate tax, see § 7441 et seq. of Title 32.

Suicide's estate not forfeited, see § 65 of chapter II of Vermont Constitution.

CHAPTER 1. WILLS

Sec.

History

Wills executed prior to July 1, 1971. 1971, No. 90 , § 21, provided: "Notwithstanding any other provision of this act [which reduced the age of majority from twenty-one to eighteen], for purposes of any provision contained in a will, trust agreement, deed, contract or other similar instrument, executed prior to the effective date of this act [July 1, 1971], which includes the word 'minor', 'infant', 'adult', or 'majority', or otherwise refers to the state of minority or the attainment of majority, the age of attainment of majority shall be deemed to be 21 years."

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Anatomical gifts, see § 5250a et seq. of Title 18.

Reformation of interests violating rule against perpetuities, see § 501 of Title 27.

Word "will" as including codicils, see § 141 of Title 1.

§ 1. Who may make.

Every individual 18 years of age or over or emancipated by court order who is of sound mind may make a will in writing.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2816. 1947, No. 202 , § 2839. P.L. § 2744. G.L. § 3200. P.S. § 2731. V.S. § 2346. R.L. § 2039. 1870, No. 31 , § 2. G.S. 49, §§ 1, 4. G.S. 71, § 17. 1847, No. 37 , § 2. R.S. 45, §§ 1, 4. 1821, p. 37. R. 1797, p. 209, § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Eighteen-year-olds considered of age, see § 173 of Title 1.

I. TESTAMENTARY CAPACITY
1. General rule.

In determination of testamentary capacity, true test is whether testator had sufficient mind and memory at time of making will to remember who were natural objects of his bounty, recall to mind his property, and dispose of it understandingly according to some plan formed in his mind. In re Estate of Burt, 122 Vt. 260, 169 A.2d 32 (1961).

Where lack of testamentary capacity or undue influence are grounds of contest of will, few artificial rules are applied, and, in view of many factors entering into matter, investigation must be befittingly untrammeled, and inquiries for most part must be carried on in accordance with liberal rules of procedure. In re Everett's Will, 105 Vt. 291, 166 A. 827 (1933).

2. Memory.

There must be sufficient active memory to collect and retain elements of business to be performed, for a sufficient time to perceive their obvious relation to each other. Executor of Converse v. Converse, 21 Vt. 168 (1849).

3. Insane delusion.

If testator has an insane delusion in respect to one of his children, or other natural object of his bounty, and instrument presented for probate is product of such delusion, it is void, notwithstanding he may have had capacity to do all kinds of business not involving such delusion. In re Segur's Will, 71 Vt. 224, 44 A. 342 (1899).

4. Guardianship.

Person adjudged a non compos and placed under guardianship as such was thereby rendered prima facie incapable of making will while adjudication remained in force. In re Cowdry's Will, 77 Vt. 359, 60 A. 141 (1905).

Appointment of guardian was not conclusive of competency of ward to make will. Robinson's Executor v. Robinson, 39 Vt. 267 (1867).

5. Burden of proof.

When proponent drew will taking entire estate or large bequest when he would have taken nothing as heir, while near, needy and deserving relatives took nothing, and no reason for devise to proponent was shown and other suspicious circumstances existed, the law regarded instrument as unnatural and cast upon proponent burden of proving that it was not procured by undue influence on his part or in his behalf. In re Barney's Will, 70 Vt. 352, 40 A. 1027 (1898).

Under facts of case, burden was on proponent to prove capacity of testatrix but on contestant to prove undue influence. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

That testator was of sound and disposing mind is presumed; if incapacity existed, it was for those objecting to will to show it. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

6. Evidence .

Extrinsic evidence is not admissible either to show that testator misunderstood the legal meaning of the will or was mistaken as to the import of ambiguous language. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

*7. Subscribing witness.

Where subscribing witness gave testimony against his attestation to effect that decedent was not of testamentary capacity, proponent, who was compelled by rule of law to call him, was at liberty not only to prove fact to be otherwise, but also to impeach credit of such witness by proving that he had made previous inconsistent declarations. Thornton's Executors v. Thornton's Heirs, 39 Vt. 122 (1866).

*8. Opinions.

Expert witness could not be asked whether testator or grantor was competent to make will or deed, since that involved a legal opinion as to what constituted such competency. Estate of Holton v. Ellis, 114 Vt. 471, 49 A.2d 210 (1946).

Nonexpert witness could give opinion as to sanity or insanity of another, when based upon conversations or dealings which he had had with such person, or upon his appearance, or upon any fact bearing upon his mental condition, within the witness' own knowledge and observation, he having first testified to such conversations, dealings, appearance or other observed facts, as basis for his opinion. Estate of Holton v. Ellis, 114 Vt. 471, 49 A.2d 210 (1946).

*9. Capacity before or after execution of will.

When will was executed after maturity of testator, and it appeared that there had been no change in his mental capacity since he reached maturity, evidence tending to show his mental condition at any time since that period, or within a reasonable time prior thereto, had a tendency to show his capacity at the time the will was executed. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013 (1904).

II. MARRIED WOMEN
20. Common law.

Where at common law wife made valid bequest of chattels with her husband's consent, it amounted to a gift from him; and though his interest in the property passed according to will, it was not merely by force of it, nor because his consent added anything to her testamentary capacity. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

21. Right to dispose by will.

Since this section gives every married woman of age and sound mind power to dispose of her real and personal estate regardless of her husband's consent, neither validity of her will nor its probate depends on such consent being shown, and surviving husband could not by probate of wife's will be estopped subsequently to elect to waive its provisions and take under statute. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

22. Will made before marriage.

Where femme sole made a will, and married, and a considerable portion of property disposed of by will remained in her unaffected upon her death by any marital rights of her surviving husband, the will was entitled to be probated. Morton v. Onion, 45 Vt. 145 (1872).

§ 2. Deposit of will for safekeeping; delivery; final disposition.

  1. A will may be deposited for safekeeping in the Probate Division of the Superior Court for the district in which the testator resides on payment to the court of the applicable fee required by 32 V.S.A. § 1434(a)(17) . The register shall give to the testator a receipt, shall safely keep each will so deposited, and shall keep an index of the wills so deposited.
  2. Each will so deposited shall be enclosed in a sealed envelope on which is written the name and address of the testator and the names and addresses of the executors named in the will. The will shall not be opened until it is delivered to a person entitled to receive it or until otherwise disposed of by the court.
  3. During the life of the testator, that will shall be delivered only to the testator or in accordance with the testator's order in writing duly acknowledged or otherwise proved to the satisfaction of the court, but the testator's duly authorized legal guardian or attorney-in-fact may at any time inspect and copy the will in the presence of the judge or register.
  4. [Repealed.]
  5. Except as provided in this section, wills deposited for safekeeping or any index of wills so deposited are not open to public inspection during the life of the testator.

    Amended 1961, No. 122 , eff. May 16, 1961; 1971, No. 105 , § 1; 1985, No. 144 (Adj. Sess.), § 11; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 33 , § 11b; 2017, No. 28 , § 2, eff. May 10, 2017; 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, §§ 2817-2820. 1947, No. 202 , § 2843. P.L. §§ 2745-2748. G.L. §§ 3201-3204. 1912, No. 102 , §§ 1-4.

Amendments--2017 (Adj. Sess.). Section amended generally

Amendments--2017. Subsec. (a): Substituted "Probate Division" for "register" preceding "shall give" in the second sentence.

Subsec. (c): Inserted ", court operations manager," following "judge" in the first sentence and deleted the former second sentence.

Amendments--2011. Subsec. (a): Deleted "of a fee of $2.00" following "payment" and inserted "of the fee required by 32 V.S.A. § 1434(a)(17)" following "court".

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (c): Substituted "that" for "such" preceding "will shall", "the testator" for "him" preceding "or in accordance with" and "the testator's" for "his" thereafter and preceding "duly authorized" in the first sentence.

Subsec. (d): Amended generally.

Subsec. (e): Added.

Amendments--1971. Subsec (a): Substituted "$2.00 to the court" for "fifty cents to the register" following "fee of" at the end of the first sentence and "the register" for "he" preceding "shall give" at the beginning of the second sentence.

Amendments--1961. Subsec. (c): Added "but his duly authorized legal guardian may at any time inspect and copy the will in the presence of the judge or register" following "witness" at the end of the first sentence.

Cross References

Cross references. Maintenance of records and papers by registers of probate generally, see Rule 79, V.R.P.P.

§ 3. Will may pass all property and after-acquired property.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2821. P.L. § 2749. G.L. § 3205. P.S. § 2732. V.S. § 2347. R.L. § 2040. G.S. 49, § 2. R.S. 45, § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 4. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 4. Former § 4, relating to whole interest to pass; exception, was derived from V.S. 1947, § 2822; P.L. § 2750; G.L. § 3206; P.S. § 2733; V.S. § 2348; R.L. § 2041; G.S. 49, § 3; R.S. 45, § 3.

Annotations From Former § 4

1. Conveyance of lesser estate.

Where one clause of wife's will was "I give and bequeath to my husband, Nathan Keniston, the sum of two thousand dollars, also my farm in Greensboro known as the Conant place," and the following clause in terms disposed of what remained of the above mentioned property after husband's decease, husband took only a life estate. In re Keniston's Will, 73 Vt. 75, 50 A. 558 (1901).

2. Nature of estate.

Under this section an estate in fee is favored, and not a life estate, unless the contrary clearly appears, and where there is no language which can be considered as a gift over, it takes rather clear language to indicate that only a life estate is intended. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

§ 5. Execution of will; requisites.

A will shall be:

  1. in writing;
  2. signed in the presence of two or more credible witnesses by the testator or in the testator's name by some other person in the testator's presence and by the testator's express direction; and
  3. attested and subscribed by the witnesses in the presence of the testator and each other.

    (b) During the period that the Emergency Administrative Rules for Remote Notarial Acts adopted by the Vermont Secretary of State (the Emergency Rules) are in effect, the witnesses to a will signed in conformity with the Emergency Rules and pursuant to the self-proving will provisions of section 108 of this title shall be considered to be in the presence of the testator and each other whether or not the witnesses are physically present with the testator or the notary.

    Amended 2005, No. 106 (Adj. Sess.), § 1; 2017, No. 195 (Adj. Sess.), § 1; 2019, No. 96 (Adj. Sess.), § 1, eff. April 28, 2020.

History

Source. V.S. 1947, § 2823. P.L. § 2751. G.L. § 3207. P.S. § 2734. V.S. § 2349. R.L. § 2042. G.S. 49, § 6. R.S. 45, § 6. 1836, No. 14 , § 1. 1821, pp. 37, 38. R. 1787, p. 209, § 1. R. 1797, p. 212, § 7. R. 1787, p. 52.

Amendments--2019 (Adj. Sess.). Added the subsec. (a) designation and added subsec. (b).

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2005 (Adj. Sess.). Substituted "the testator's" for "his" in two places and "two" for "three" following "subscribed by".

Cross References

Cross references. Devise or legacy to witness, see § 10 of this title.

Nuncupative will, see § 6 of this title.

Probate of will conclusive as to execution, see § 102 of this title.

Subsequent incompetency of witnesses, see § 8 of this title.

Wills executed out of state, see § 112 of this title.

ANNOTATIONS

Analysis

1. Name of testator signed by another.

Declaration of purported testator that copy made at his request by another of draft or memorandum of will was his will, did not show compliance with requirement that if name of testator is signed to will by another in his presence, it must be by testator's prior express direction. In re Moon's Will, 107 Vt. 92, 176 A. 410 (1935).

Mere knowledge of testator that his name was being signed by another, or acquiescence or assent to signing, was insufficient. In re Moon's Will, 107 Vt. 92, 176 A. 410 (1935).

2. Knowledge of witnesses.

It is not necessary that witnesses to will should know character of instrument which they are attesting. In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

Publication of will was sufficient where testatrix and witnesses severally signed it in presence of each other, although testatrix did not personally say that it was her will, but person who drew it for her announced to the witnesses in her presence that it was, and requested them to sign it as witnesses. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

Formal publication is not necessary; any communication by testator to witnesses, by words, signs, motions, or conduct, of idea that he intends to give a paper effect as his instrument is sufficient in law to constitute a publication. Dean v. Heirs of Dean, 27 Vt. 746 (1855); In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901); In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

3. Number of witnesses.

Statutory requirement of signatures of three attesting witnesses for valid will is in accord with United States Constitution. In re Estate of Blais, 155 Vt. 650, 583 A.2d 1275 (mem.) (1990).

4. Competency of witnesses.

"Credible" under this section means "competent" at time of attestation under section 8 of this title. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Will may be attested by taxpayer of town that is a beneficiary thereunder. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Executor of a will who took no benefit under it was competent witness to its execution. Richardson v. Richardson, 35 Vt. 238 (1862).

5. Presence of witnesses.

Even though two witnesses duly attested and subscribed will in testator's presence and in the presence of each other, where a third person was called in from without, to whom testator and two witnesses acknowledged their respective signatures, and who then subscribed his name as a witness in presence of testator and of other two witnesses, will was not properly witnessed. In re Pope's Will, 85 Vt. 564 (1862).

It was sufficient if witnesses to will were together in presence of one another in such a way that they could see one another sign, whether they actually looked and saw or not. Heirs of Blanchard v. Heirs of Blanchard, 32 Vt. 62 (1859); In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

Testator's acknowledgement, in the presence of witnesses, of his signature previously affixed, is equivalent to a signing in their presence; the acknowledgment need not be in express words. Adams v. Field, 21 Vt. 256 (1849); In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901).

6. Proof of execution.

When from lapse of time attesting witnesses were unable to recollect all facts essential to good execution, if their signatures and that of testator were proved, an attestation clause, showing compliance with all formalities required by law, was prima facie evidence of due execution of will. In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901).

Law of this state followed rule of English court of chancery, which, before a contested will could be established, required all subscribing witnesses to be examined, unless impracticable, as in cases where attesting witness was dead, insane, absent from state, or rendered incompetent subsequent to his attestation. Thornton's Executors v. Thornton's Heirs, 39 Vt. 122 (1866).

Where competent testimony was introduced, only fair balance of proof was necessary to prove execution of will. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

Proof of due execution and attestation was admissible, though attestation clause was informal or entirely omitted, and if one of subscribing witnesses was dead, the genuineness of his signature could be proved. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

7. Testamentary trusts.

Where owner of property purported to create trust inter vivos but no interest passed to beneficiary before death of settlor, intended trust was a testamentary trust and invalid, unless statutory requirements relating to validity of wills were complied with. Warner v. Burlington Federal Savings & Loan Ass'n, 114 Vt. 463, 49 A.2d 93 (1946).

8. Donatio mortis causa.

Where intestate promised plaintiff to pay her after his death a certain sum per year during time she should live with him and keep his house; and consideration of promise was in part the services to be rendered and in part a desire to make a mortuary gift from motives of affection, plaintiff could recover the former but not the latter. Frost v. Administrator of Frost, 33 Vt. 639 (1861).

Gift of all donor's personal property, in prospect of death, is a valid donatio mortis causa, but this is not true of a gift of real estate. Meach v. Meach, 24 Vt. 591 (1852).

Delivery of property as gift, to become absolute upon decease of donor, but made while donor is in health, and without reserving to him any power of revocation, cannot be supported as a donatio causa mortis. Smith v. Kittridge, 21 Vt. 238 (1849).

Where deceased in his last sickness made and delivered to his daughter his note, expressed to be for love and affection, and promising that she should have out of his estate fourteen hundred dollars, to be paid after his decease, note was void for want of legal and sufficient consideration, and could not be sustained as a donatio causa mortis. Holley v. Adams, 16 Vt. 206 (1844).

9. Promissory notes.

Mere fact that an instrument postponed payment until "on demand, after my decease" did not operate to give it character as a will or testament. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291 (1966).

10. Alterations.

Where a properly signed and witnessed will was undated and consisted of ten typewritten pages, featuring handwritten red ink deletions, revisions and notations, even though the changes created some uncertainty, they were not sufficient to render the will facially invalid. Eckstein v. Estate of Dunn, 174 Vt. 575, 816 A.2d 494 (mem.) (2002).

11. Holographic wills.

Vermont does not have a statutory provision for holographic wills, and from this silence it is logical to infer that the legislature does not intend to exempt such handwritten wills from formal execution requirements. In re Estate of Cote, 176 Vt. 293, 848 A.2d 264 (2004).

§ 6. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 6 Former § 6, relating to nuncupative wills, was derived from V.S. 1947, § 2824; P.L. § 2752; G.L. § 3208; P.S. § 2735; V.S. § 2350; R.L. § 2043; G.S. 49, § 8; R.S. 45, § 8; 1836, No. 14 , § 2; 1821, p. 38; R. 1797, p. 210 §§ 2, 3, 4.

Annotations From Former § 6

1. Construction.

This section is interpreted as limiting the right to dispose of property by a nuncupative will to personal property with a value of $200 or less. In re Estate of Cote, 176 Vt. 293, 848 A.2d 264 (2004).

§ 7. How made by soldier or sailor; military will.

  1. The provisions of this chapter shall not prevent a person in active military service from disposing of his or her estate as he or she might otherwise have done.
  2. Notwithstanding any other provision of law, a military will prepared and executed in compliance with, and containing a provision stating that the will is prepared pursuant to, 10 U.S.C. § 1044d shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this State.

    Amended 2005, No. 7 , § 1, eff. April 21, 2005; 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2825. P.L. § 2753. G.L. § 3209. P.S. § 2736. V.S. § 2351. R.L. § 2044. G.S. 49, § 9. R.S. 45, § 9. 1836, No. 14 , § 2. 1821, p. 38. R. 1797, p. 211, § 5.

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "a person in active military service from disposing" for "a soldier in active military service, or a mariner or seaman at sea, from disposing", and deleted "wages or other personal" preceding "estate".

Subsec. (b): Inserted "prepared and executed in compliance with, and" preceding "containing".

Amendments--2005. Added "military will" in the section heading, designated the existing provisions of the section as subsec. (a), and in that subsection, inserted "or her" following "his" and "or she" following "he", and added subsec. (b).

ANNOTATIONS

Analysis

1. Age.

An infant could not make a valid soldier's will. Goodell v. Pike, 40 Vt. 319 (1867).

2. Actual military service.

It is not necessary that soldier be in extremis; when he is in enemy country, performing military service, whether in camp, campaign or in battle, such service is actual military service, within the letter and spirit of this section. VanDeuzer v. Estate of Gordon, 39 Vt. 111 (1866).

3. Sufficiency of declarations.

Where deceased, while a soldier in actual military service, within the meaning of this section, declared to his comrades how his property should be divided and requested a comrade, the witness introduced to prove the will, to write to a person named what disposition he desired to be made of his property, these declarations and request were sufficient to make a good military testament. Gould v. Safford's Estate, 39 Vt. 498 (1866).

4. Witnesses.

A nuncupative will of a soldier in actual military service may be established under common law upon testimony of one witness only. Gould v. Safford's Estate, 39 Vt. 498 (1866).

§ 8. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 8. Former § 8, relating to subsequent incompetency of witnesses, was derived from V.S. 1947, § 2826; P.L. § 2754; G.L. § 3210; P.S. § 2737; V.S. § 2352; R.L. § 2045; G.S. 49, § 10; R.S. 45, § 10.

Annotations From Former § 8

1. Time of attestation.

"Credible," under section 5 of this title, requiring that will be witnessed by three or more credible witnesses, means "competent" at time of attestation under this section. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Question of competency is to be determined as of time when will was executed and not as of the time when offered for probate. Smith v. Jones, 68 Vt. 132, 34 A. 424 (1895).

§ 9. Repealed. 1967, No. 329 (Adj. Sess.), § 1, eff. March 23, 1968.

History

Former § 9, relating to recording copies of wills devising real estate and the probate thereof, was derived from V.S. 1947, § 2827; P.L. § 2757; G.L. § 3213; P.S. § 2740; V.S. § 2355; R.L. § 2048; G.S. 49, § 37; R.S. 45, § 37; 1821, p. 61; 1804, p. 126.

§ 10. Devise or legacy to witness.

Any beneficial devise or legacy made or given in a will to a subscribing witness to the will or to the spouse of a subscribing witness shall be voidable unless there are two other competent, subscribing witnesses to the will. Notwithstanding this section, a provision in the will for payment of a debt shall not be void or disqualify the creditor as a witness to the will.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2828. P.L. § 2755. G.L. § 3211. P.S. § 2738. V.S. § 2353. 1884, No. 109 . R.L. § 2046. G.S. 49, §§ 11, 12. R.S. 45, §§ 11, 12. 1821, p. 39. R. 1797, p. 212, §§ 9-14.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Legacy to witness who was not an heir was void; but legacy to witness who was an heir was valid. Clark v. Clark's Estate, 54 Vt. 489 (1882).

2. Spouse of witness.

Legatee who was heir at law of testator, and whose wife was one of only three attesting witnesses to will, was not entitled to take under will, notwithstanding the fact that this section places heir at law acting as attesting witness in a favored class. In re Knapp's Will, 102 Vt. 143, 146 A. 253 (1929).

3. Pleading.

Question whether legatee who was heir at law of testator, and whose wife was one of only three attesting witnesses to will, was entitled to take legacy was properly raised on proof of will, instead of on decree of distribution, since it involved question whether will was valid in toto or only in part. In re Knapp's Will, 102 Vt. 143, 146 A. 253 (1929).

§ 11. How revoked.

    1. A will is revoked: (a) (1)  A will is revoked:
      1. by executing a subsequent will that revokes the previous will expressly or by inconsistency; or
      2. by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction.
    2. As used in this subsection, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touched any of the words on the will.
  2. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.
  3. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will, and each will is fully operative on the testator's death to the extent they are not inconsistent.

    Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2829. P.L. § 2756. G.L. § 3212. P.S. § 2739. V.S. § 2354. R.L. § 2047. G.S. 49, § 7. R.S. 45, § 7. 1836, No. 14 , § 1. 1821, p. 38. R. 1797, p. 209, § 1. R. 1797, p. 211, § 5.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Implied revocation.

Purchase of land, after execution of a will, which would be included in general description of land devised by will, was no revocation of will, in whole or in part. Blandin v. Blandin, 9 Vt. 210 (1837).

Where testator conveyed whole of estate devised, it was of necessity a total revocation of will; and the plain sense of this section is that there shall be no implied revocations of wills and testaments except such as result ex necessitate rei. Graves v. Sheldon, 2 D. Chip. 71 (1824).

Alteration in circumstances of testator, after execution of will, will not in any case amount to a revocation in law. Graves v. Sheldon, 2 D. Chip. 71 (1824).

2. Partial revocation.

Where codicil made disposition of a portion of testator's property inconsistent with disposition previously made in original will, it operated pro tanto as a revocation of the original provision. Holley v. Larrabee, 28 Vt. 274 (1856).

Where part of estate devised was conveyed by testator, it was a revocation of will pro tanto only. Graves v. Sheldon, 2 D. Chip. 71 (1824).

Conveyance by testator of all his real estate was not an implied revocation of will, in toto. Parkhill v. Parkhill, (1819), Brayt. 239.

3. Alterations.

Alterations made by testator in duly executed will, which left original provisions decipherable and which were not made with formalities required to make them effectual, did not revoke instrument in whole or in part, unless intention so to do was made out, and will must be established as originally executed. In re Knapen's Will, 75 Vt. 146, 53 A. 1003 (1903).

4. Cancellation.

Where testator wrote below all the writing and near the middle of the sheet. "This will is hereby cancelled and annulled in full this 15th day of March, 1859," it was a revocation by "cancelling." Warner v. Warner's Estate, 37 Vt. 356 (1864).

5. Intention to revoke.

The mere intention or desire on the part of a testator to revoke his will, not carried into effect in method prescribed by this section, does not operate as a revocation. Heirs of Blanchard v. Heirs of Blanchard, 32 Vt. 62 (1859).

6. Later will.

Probate court properly allowed a testator's 2006 will, which revoked her 1997 mutual will, because there was no exception to revocation where the testator had previously made a contract for mutual wills, nor was there a rule that a will made in breach of such a contract was invalid; appellant's remedy for breach of the contract to make mutual wills would be to bring a claim for breach of contract against the estate. In re Estate of Inouye, - Vt. - , 237 A.3d 1239 (2020).

Where later will is relied upon to revoke will propounded, such later will must be established by same evidence as though it were presented for probate itself, and fact of revocation cannot be shown in any other way. In re Noyes' Will, 61 Vt. 14, 17 A. 743 (1888).

7. Revival of revoked will.

A former will may revive upon destruction of a later will which operates as a revocation of former, and republication of the former will is not necessary. In re Gould's Will, 72 Vt. 316, 47 A. 1082 (1900).

Whether or not former will revives upon destruction of later will which operates as revocation of former, depends upon intention of testator in destruction of later will. In re Gould's Will, 72 Vt. 316, 47 A. 1082 (1900).

8. Presumptions.

Where testator executed his will, and will was not found at time of his decease, this raised a presumption of his having destroyed it with intent to revoke it, but this was a presumption of fact, merely, which might be encountered by contrary proof, and the will thus established. Minkler v. Estate of Minkler, 14 Vt. 125 (1842).

CHAPTER 3. PROBATE AND PROCEDURE FOR CONSTRUCTION OF WILLS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 101. Will not effective until allowed.

To be effective, a will must be allowed in the Probate Division of the Superior Court, or by appeal in the Civil Division of the Superior Court or the Supreme Court.

Amended 1985, No. 144 (Adj. Sess.), § 12; 2009, No. 154 (Adj. Sess.), § 120, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2830. P.L. § 2758. G.L. § 3214. P.S. § 2741. V.S. § 2356. R.L. § 2049. G.S. 49, § 20. R.S. 45, § 20.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court".

Amendments--1985 (Adj. Sess.). Substituted "superior" for "county" preceding "or supreme".

Cross References

Cross references. Appeal to superior court from probate court, see Rule 72, Vermont Rules of Civil Procedure.

Appeal to supreme court from probate court, see Rule 13, Vermont Rules of Appellate Procedure.

ANNOTATIONS

1. Effect until proved.

A will passes neither real nor personal estate until it is proved and allowed. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 102. Allowance conclusive as to execution.

The allowance of a will shall be conclusive as to its due execution and validity.

Amended 1985, No. 144 (Adj. Sess.), § 13; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2830. P.L. § 2758. G.L. § 3214. P.S. § 2741. V.S. § 2356. R.L. § 2049. G.S. 49, § 20. R.S. 45, § 20.

Amendments--2017 (Adj. Sess.). Deleted "of real or personal estate" preceding "shall be conclusive" and inserted "and validity".

Amendments--1985 (Adj. Sess.). Substituted "allowance" for "probate" in the section heading and at the beginning of the section.

ANNOTATIONS

Analysis

1. Conclusiveness limited.

The maxim, expressio unius est exclusio alterius, applies to this section and its conclusiveness is impliedly so limited. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

Probate of will was conclusive only as to its due execution. In re Carey's Estate, 49 Vt. 236 (1877).

2. Capacity of testator.

Probate of a will established capacity of testator, and evidence was not admissible on an appeal from a decree of distribution to prove his incapacity. Vermont Baptist State Convention v. Ladd's Estate, 59 Vt. 5, 9 A. 1 (1886).

3. Conditional wills.

Because a determination of whether a will is conditional necessarily involves construction of the will, that determination must be made subsequent to its allowance. Appellants' challenge to the conditional nature of the will following allowance was therefore timely and did not constitute a collateral attack on the allowance of the will. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 103. Custodian of will to deliver.

If a person has the custody of a will, within 30 days after learning of the death of the testator, the custodian shall deliver the will to the Probate Division of the Superior Court where venue lies or to the executor named in the will.

Amended 1985, No. 144 (Adj. Sess.), § 14; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2831. P.L. § 2759. G.L. § 3215. P.S. § 2742. V.S. § 2357. R.L. § 2050. G.S. 49, § 13. R.S. 45, § 13.

Amendments--2017 (Adj. Sess.). Substituted "the Probate Division of the Superior Court" for "a probate division of the superior court".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "learning" for "he knows" preceding "of the death of the testator" and "the custodian" for "he" thereafter and "to a" for "into the" preceding "probate court" and "where venue lies" for "which has jurisdiction" thereafter.

Cross References

Cross references. Commitment of custodian retaining will, see § 106 of this title.

Penalty for neglect of duty, see § 105 of this title.

Venue of probate court proceedings, see § 311a of Title 4.

ANNOTATIONS

1. Mutilation by custodian.

Where surviving husband after death of his wife caused document purporting to be her last will and testament to be mutilated, husband's heirs at law, contesting such alleged will after his death, were in no better position than he would have been, and were affected by his acts and declarations in same manner and to same extent as he would have been had he been contestant himself. In re Campbell's Will, 102 Vt. 294, 147 A. 687 (1929).

§ 104. Executor to present will and accept or refuse trust.

  1. A person named executor in a will who has knowledge thereof shall file a death certificate and petition to open the decedent's estate in the Probate Division of the Superior Court where venue lies with reasonable promptness.
  2. A petition to open an estate need not be filed when no assets require probate administration. The named executor may file with the court an original death certificate and will without filing a petition to open an estate by notifying the court that no assets appear to require probate administration.

    Amended 1985, No. 144 (Adj. Sess.), § 15; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2832. P.L. § 2760. G.L. § 3216. P.S. § 2743. V.S. § 2358. R.L. § 2051. G.S. 49, § 14. R.S. 45, § 14. 1821, p. 40. R. 1797, p. 214, § 15. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

Penalty for neglect of duty, see § 105 of this title.

ANNOTATIONS

Analysis

1. Withdrawal of petition.

Probate court had authority, in its discretion, to permit executor named in purported will to discontinue his petition for probate and to withdraw document from files of probate court for purpose of presenting it to proper court of another jurisdiction where it was alleged that testator died and that greater part of his property was located. In re Will of Pynchon, 115 Vt. 217, 55 A.2d 519 (1947).

2. Joint executors.

Probate court was not without jurisdiction to entertain proceedings for probate of purported will because it was presented by one of two persons named therein as executors against objection and protest of the other, since such persons were not then executors and rule that executors must act jointly in matters requiring judgment was not applicable. In re Estate of Holden, 110 Vt. 60, 1 A.2d 721 (1938).

§ 105. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former § 105. Former § 105, relating to penalties, was derived from V.S. 1947, § 2833; P.L. § 2761; G.L. § 3217; P.S. § 2744; V.S. § 2359; R.L. § 2052; G.S. 49, § 15; R.S. 45, § 15; 1821, p. 40; R. 1797, p. 214, § 15; R. 1797, p. 219, § 21; R. 1787, pp. 51, 52 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 105

1. Causes of action.

Cause of action against custodian under section 103 of this title is different from cause of action against executor under section 104 of this title, and separate suits may be maintained at same time against person who is both executor and custodian. Richardson v. Fletcher, 76 Vt. 206, 56 A. 981 (1904).

2. Pleading.

This section is penal and in an action for forfeiture therein provided declaration must show that action is founded thereon and contain a substantive allegation that offense charged was committed against the form of statute. Richardson v. Fletcher, 74 Vt. 417, 52 A. 1064 (1902).

In action for a penalty created by this section, declaration in language of this section is sufficient, if every fact necessary to constitute offense is thereby charged or necessarily implied. Richardson v. Fletcher, 74 Vt. 417, 52 A. 1064 (1902).

§ 106. Duty of custodian of will; liability.

  1. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to an appropriate court. A person who intentionally refuses or fails to deliver a will after being ordered to do so by the court in a proceeding brought for the purpose of compelling delivery may be subject to proceedings for civil contempt under 12 V.S.A. § 122 .
  2. A person who suffers damages as a result of another person's intentional failure to deliver a will shall have an action in Superior Court for damages and injunctive relief.

    Amended 1971, No. 199 (Adj. Sess.), § 17; 1985, No. 144 (Adj. Sess.), § 16; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2834. P.L. § 2762. G.L. § 3218. P.S. § 2745. V.S. § 2360. R.L. § 2053. G.S. 49, § 16. R.S. 45, § 16. R. 1797, p. 237, § 63.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "commissioner of corrections" for "county jail" following "committed to the".

§ 107. Allowance of will; custody of property.

  1. If consents are filed by all the heirs at law and surviving spouse, a will may be allowed without hearing. If consents are not obtained, the court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.
  2. Objections to allowance of the will must be filed in writing not less than seven days prior to the hearing. In the event that no timely objections are filed, the court may:
    1. allow the will on the testimony of only one of the subscribing witnesses if the witness testifies that the will was executed as provided in chapter 1 of this title; or
    2. allow the will without hearing if it meets criteria set out in section 108 of this title.
  3. After delivery of the will to the court, the person named as executor in the will shall have power pending allowance thereof, to assume custody of the estate for its preservation until a special or other administrator is appointed and qualifies.

    Amended 1975, No. 240 (Adj. Sess.), § 1; 1985, No. 144 (Adj. Sess.), § 17; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2; 2019, No. 36 , § 2; 2019, No. 167 (Adj. Sess.), § 15, eff. October 7, 2020.

History

Source. V.S. 1947, § 2835. P.L. § 2763. 1933, No. 157 , § 2550. 1921, No. 77 , § 1. G.L. § 3219. P.S. § 2746. V.S. § 2361. R.L. § 2054. G.S. 49, § 17. R.S. 45, § 17. 1821, p. 39..

Amendments--2019 (Adj. Sess.). Subsec. (b): Amended generally.

Amendments--2019. Subsec. (b): Substituted "seven" for "three business".

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted "probate" preceding "court" and substituted "allowance" for "probate" preceding "thereof".

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Assignment of cases for hearing generally, see Rule 40, V.R.P.P.

Notice, see Rule 4, V.R.P.P.

ANNOTATIONS

Analysis

1. Notice.

Notice by publication in proceedings to probate will is not denial of due process of law under fourteenth amendment to United States Constitution. Everett v. Wing, 103 Vt. 488, 156 A. 393 (1931), cert. denied, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582 (1932).

All persons interested in determining state or condition of will are constructively notified by publication of notice. Everett v. Wing, 103 Vt. 488, 156 A. 393 (1931), cert. denied, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582 (1932).

2. Hearing.

Because the parties to this appeal, as heirs, devisees, legatees, and children, met the broad definition of "interested persons," the probate division should have scheduled a hearing on the allowance of the will, as the receipt of consents to allowance of the will did not mean that the hearing was no longer necessary. The probate division's failure to hold the hearing and to notify appellant grandson of it was of no consequence, however, as the grandson did receive notice of the allowance of the will and did not challenge it for many months thereafter. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 108. Self-proved wills.

A will may be self-proved as to its execution, by the sworn acknowledgment of the testator and the witnesses, made before a notary public or other official authorized to administer oaths in the place of execution in the following circumstances:

  1. The testator signed the instrument as the testator's will or expressly directed another to sign for the testator in the presence of two witnesses.
  2. The signing was the testator's free and voluntary act for the purposes expressed in the will.
  3. Each witness signed at the request of the testator, in the testator's presence, and in the presence of the other witness.
  4. To the best knowledge of each witness at the time of the signing, the testator was at least 18 years of age or emancipated by court order and was of sound mind and under no constraint or undue influence.

    Amended 1985, No. 144 (Adj. Sess.), § 18; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2836. 1947, No. 38 , § 1. P.L. § 2764. G.L. § 3220. P.S. § 2747. V.S. § 2362. R.L. § 2055. G.S. 49, § 18. R.S. 45, § 18.

Revision note. At the end of the first sentence, substituted "chapter 1 of this title" for "this chapter" to correct an error in the reference.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Evidence generally, see Rule 43, V.R.P.P.

ANNOTATIONS

1. Consent to allowances.

Because the parties to this appeal, as heirs, devisees, legatees, and children, met the broad definition of "interested persons," the Probate Division should have scheduled a hearing on the allowance of the will, as the receipt of consents to allowance of the will did not mean that the hearing was no longer necessary. The Probate Division's failure to hold the hearing and to notify appellant grandson of it was of no consequence, however, as the grandson did receive notice of the allowance of the will and did not challenge it for many months thereafter. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 109. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former § 109. Former § 109, relating to when witness does not reside in State, was derived from V.S. 1947, § 2836; 1947, No. 38 , § 1; P.L. § 2764; G.L. § 3220; P.S. § 2747; V.S. § 2362; R.L. § 2055; G.S. 49, § 18; R.S. 45, § 18.

Annotations From Former § 109

1. Nonresident witness present in state.

When one of three attesting witnesses to a will had deceased, and another was present in court and testified to the signing, it was not incumbent on proponent to produce the other, who resided in another state and not within reach of process, nor to take his deposition, though he was in this state for a few days during pendency of cause. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

§ 110. Absence of witness, proof.

When it appears to the court that a will cannot be proven as otherwise provided by law, because one or more of the subscribing witnesses are unavailable or incapable of testifying, the court may admit the will to probate upon the testimony in person or by affidavit of at least one credible disinterested individual that the signature to the will is in the handwriting of the person whose will it purports to be, or upon other sufficient proof of the handwriting, and the will on its face complies with other legal requirements. This section shall not preclude the court, in its discretion, from requiring additional testimony of any available subscribing witness or proof of other pertinent facts and circumstances that the court deems necessary to admit the will to probate.

Amended 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2838. 1945, No. 33 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 111. Notice to beneficiaries.

Within 30 days after the allowance of a will, the court shall mail, postage paid, a written notice thereof to each beneficiary, devisee, or legatee named in the will, and to any other person who contested the allowance.

Amended 1985, No. 144 (Adj. Sess.), § 19; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2839. 1947, No. 39 , § 1. P.L. § 2766. G.L. § 3222. P.S. § 2749. V.S. § 2364. 1892, No. 47 .

Amendments--2017 (Adj. Sess.). Deleted "containing a devise or a bequest" following "will"; inserted ", and to any other person who contested the allowance" following "will".

Amendments--1985 (Adj. Sess.). Substituted "allowance" for "probate" following "after the", "court" for "judge" following "bequest the" and "the" for "such" following "named in".

Cross References

Cross references. Exemption of small estate proceedings from notice requirement, see Rule 80.3, V.R.P.P.

Notice generally, see Rule 4, V.R.P.P.

Papers and notices to be served on beneficiaries, see Rule 5.1, V.R.P.P.

§ 112. Wills made out of state.

  1. A last will and testament executed outside this State in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this State, provided that the last will and testament is in writing and subscribed by the testator.
  2. When a will is allowed pursuant to subsection (a) of this section, the Probate Division of the Superior Court shall grant letters testamentary or letters of administration with the will annexed, and the letters shall extend to all the estate of the testator in this State. After the payment of enforceable debts and expenses of administration, the estate shall be disposed of according to the will so far as the will may operate upon it, and the residue shall be disposed of as is provided in case of estates in this State belonging to persons who are residents of another state or country.

    Amended 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2840. P.L. § 2767. G.L. § 3223. 1917, No. 86 . P.S. § 2750. V.S. § 2365. R.L. § 2057. G.S. 49, § 20.

Amendments--2017 (Adj. Sess.). Designated the existing text as subsec. (a); substituted "outside" for "without" following "executed" and "the" for "such" preceding "will" in subsec. (a); and added subsec. (b).

§ 113. Wills allowed out of state - Generally.

A will allowed in any other state, or in a foreign country, according to the laws of that state or country, may be the subject of ancillary administration in the Probate Division of the Superior Court.

Amended 1971, No. 179 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 20; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2841. P.L. § 2768. G.L. § 3224. P.S. § 2751. V.S. § 2366. R.L. § 2058. G.S. 49, § 21. R.S. 45, § 21. 1821, p. 39. R. 1797, p. 240, § 68.

Revision note. In the section heading, substituted "allowed" for "proved" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Reenacted section without change.

Cross References

Cross references. Ancillary administration generally, see Rule 80.2, V.R.P.P.

ANNOTATIONS

Analysis

1. Application.

This section and section 115 of this title were not intended to apply to a foreign probate of will of testator domiciled here, but only to such probate of will of a testator domiciled in some other state or country, who leaves property here on which his will can operate. Tarbell v. Walton, 71 Vt. 406, 45 A. 748 (1899).

2. Foreign probate.

Where resident of Vermont died testate, leaving property in another state upon which his will could act, such will could be probated in that state, although never offered for probate in Vermont, and when duly admitted to probate in that state, full force and effect would be given by courts of Vermont to the judgment of probate, but administration under such probate in that state was only ancillary, and did not draw to it any assets not having their situs therein. Walton v. Estate of Hall, 66 Vt. 455, 29 A. 803 (1894).

3. Title to real estate .

Where real estate situated in Vermont was owned by resident of another state and that person died in another state leaving a will, will must be probated in this state pursuant to sections 112-116 of this title in order for decree to be made to convey title according to terms of will. 1930-32 Op. Atty. Gen. 292.

*4. Relation back of subsequent probate.

Conveyance of land in this state by executors under a foreign will, before probate here, is a defective execution of the power; but a subsequent probate here relates back and cures the defect. Tudor v. Tudor, 80 Vt. 220, 67 A. 539 (1907).

*5. Foreign will as evidence.

A will, made and approved in another state, cannot be read in evidence in our courts on trial of a title derived under it to lands in this state, unless a copy of such will is filed and recorded in probate court in this state. Ives v. Allyn, 12 Vt. 589 (1840).

§ 114. Petition and hearing on.

  1. When a will has been allowed in any other state or country, as provided in section 113 of this title, an executor or other person interested may file a petition for ancillary administration. The petition shall contain:
    1. a duly authenticated copy of the decedent's will and the allowance thereof, where probate is required by the laws of the state or country; or
    2. a duly authenticated certificate of the legal custodian of the original will that the same is a true copy and that the will has become operative by the laws of the state or country, where probate is not required by the laws of the state or country; or
    3. a copy of a notarial will in possession of a notary in a foreign state or country entitled to the custody thereof and duly authenticated by the notary, the laws of the state or country requiring that the will remain in the custody of the notary.
  2. After receiving a petition for ancillary administration, the Probate Division of the Superior Court shall schedule a hearing and require notice as provided by the Rules of Probate Procedure. Objections to allowance of the will in Vermont shall be filed in writing not less than 14 business days prior to the hearing. In the event that no objections are filed, the will shall be allowed without hearing.

    Amended 1985, No. 144 (Adj. Sess.), § 21; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2842. 1947, No. 202 , § 2865. P.L. § 2769. G.L. § 3225. P.S. § 2752. 1904, No. 67 , § 1. 1900, No. 36 , § 1. V.S. § 2367. R.L. § 2059. G.S. 49, § 22. R.S. 45, § 22. R. 1797, p. 240, § 69.

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "the" for "such" throughout the subsection.

Subsec. (b): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 115. Order for filing.

If the instrument is allowed in this State as the last will and testament of the deceased, the copy shall be filed and recorded and the will shall have the same effect as if originally allowed in the same court.

Amended 1971, No. 179 (Adj. Sess.), § 4; 1985, No. 144 (Adj. Sess.), § 22; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2843. P.L. § 2770. G.L. § 3226. P.S. § 2753. V.S. § 2368. R.L. § 2060. G.S. 49, § 23. R.S. 45, § 23. 1821, p. 39. R. 1797, p. 240, §§ 68, 69.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--1985 (Adj. Sess.). Deleted "it appears to the court that" preceding "the instrument", substituted "is" for "ought to be" thereafter and deleted "proved and" following "originally".

Amendments--1971 (Adj. Sess.). Reenacted section without change.

ANNOTATIONS

1. Application.

This section and section 113 of this title were not intended to apply to foreign probate of will of testator domiciled here, but only to such probate of will of testator domiciled in some other state or country, who leaves property here on which his will can operate. Tarbell v. Walton, 71 Vt. 406, 45 A. 748 (1899).

§§ 116, 117. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former §§ 116, 117. Former § 116, relating to administration under; estate, how disposed of, was derived from V.S. 1947, § 2844; P.L. § 2771; G.L. § 3227; P.S. § 2754; V.S. § 2369; R.L. § 2061; G.S. 49, § 24; R.S. 45, § 24; 1821, p. 39; R. 1797, p. 240, § 68 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Former § 117, relating to construction by Superior Court and Supreme Court, was derived from V.S. 1947, § 2845; P.L. § 2772; G.L. § 3228; P.S. § 2755; 1896, No. 40 , § 1; 1971, No. 185 (Adj. Sess.), § 236; 1973, No. 193 (Adj. Sess.), § 3 and amended by 1985, No. 144 (Adj. Sess.), § 23.

Annotations From Former § 116

1. Foreign executors.

Probate court should not remove executors living out of state, and grant administration to another, when fact of their living out of state was known at time of granting letters testamentary, when such executors had commenced a suit to recover a claim, and application for their removal was made by person sued. Wiley v. Brainerd, 11 Vt. 107 (1839).

Annotations From Former § 117

1. Construction with other laws.

Uniform declaratory judgments act did not repeal this section either expressly or by implication. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

Language of section 465 of this title, while clearly conferring upon probate court jurisdiction to determine whether bequest in will to widow was intended to be in lieu of her statutory right to one-third in value of real estate of which testator died seized in his own right, was not specific grant of exclusive power and did not preclude court of chancery from construing will under authority contained in this section, which was later enactment. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

2. Persons interested .

Only those having some interest in a will, or estate, or its proceeds are entitled to contest the probate of a will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

*3. Stepchildren.

The stepchild of a testator has no right, as such, to contest the probate of a will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

The stepchild of a testator, mentioned in a memorandum sought to be incorporated in a will by reference, is entitled to contest the probate of the will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

4. Superior court jurisdiction.

To sustain proceeding in court of chancery a real doubt or dispute must have arisen and be specified in allegations of bill, which must also show that situation of estate and its administration is such that probate court cannot seasonably and adequately handle question and that resort to court of chancery was reasonably necessary. Mansur v. Tate, 96 Vt. 373, 119 A. 882 (1923); O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

Before court of chancery takes jurisdiction of a case pending in probate court, it must decide whether any terms of will are in such doubt as to require intervention of court of chancery for purpose of giving them proper construction, and also whether terms of will are in dispute within meaning of this section. Harris v. Harris, 79 Vt. 22, 64 A. 75 (1906).

Before court of chancery will take jurisdiction it must appear not only that terms of the will are doubtful or in dispute, and that orators have requisite interest, but also that something substantial will be accomplished by the intervention of that court. Clark v. Peck's Executors, 79 Vt. 275, 65 A. 14 (1906).

*5. Limited to aid of probate court.

Jurisdiction of court of chancery in probate matters is not original, but special and limited and only in aid of probate court where powers of that court are inadequate. Murray v. Cartmell's Executor, 118 Vt. 178, 102 A.2d 853 (1954).

*6. Decree of distribution as condition precedent.

Where a will bequeathing property in trust was duly probated, and, trust having terminated, property was ready for distribution, court of chancery would not take jurisdiction of a bill brought by legatees to construe the will in advance of a decree of distribution by the probate court. Harris v. Harris, 79 Vt. 22, 64 A. 75 (1906).

*7. Pending appeal from probate court.

Court of chancery will not take jurisdiction of bill for construction of will, brought by devisee pending her appeal from probate court's final decree of distribution involving that question. Hall v. Lawton, 80 Vt. 535, 68 A. 657 (1908).

*8. Rights of surviving spouse.

Where husband made bequest to wife in will, and in regular course of administration probate court would not construe will and determine whether bequest was in lieu of widow's statutory right until final decree of distribution, at which time widow's right of election, if it was necessary for her to make one, would have passed, widow was entitled to have court of chancery construe will and determine question. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

9. Supreme court jurisdiction.

Supreme court, having determined that decedent did not intend bequest in will to be in lieu of widow's statutory rights, had exhausted its authority under section. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

10. Similar cases.

No two wills are exactly alike and decisions in the most similar cases are to be considered aids to construction rather than direct authorities. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

11. Language of will.

Where the terms of a written instrument are plain and unambiguous there is no room for construction and the instrument is to be given effect according to its own language. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The courts will look to the language of the will, rather than plausible presumptions of probable purpose, to define the purposes and objectives of the testator, if it can be given effect, and will turn to matters external to the will only when that instrument gives inadequate, or ambiguous directions. In re Estate of McCoy, 126 Vt. 28, 220 A.2d 469 (1966).

An interpretation of a will which is advantageous to the surviving widow, though favored by the law as a matter of policy, cannot overrule the express provisions of the instrument. In re Estate of McCoy, 126 Vt. 28, 220 A.2d 469 (1966).

12. Intention of testator.

When construing a will, the first and chief objective is to ascertain the testator's intention from the language of the will, since, so far as such intention may be legally carried out, it governs. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

It is the court's duty to declare and enforce testator's intention as ascertained from the will itself. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

The cardinal rule of interpreting wills, to which all other rules are servient, is that from the language used the meaning intended by the testator is to be ascertained and given legal effect insofar as legally possible. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Where a testator's intention is clear, courts should not resort to canons of construction in an attempt to unravel what needs no unraveling. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

In construing a will the first and chief object is to ascertain the intention of the testator, from the language used and to determine such intention, the court is to take the instrument by its four corners, consider it in all its parts, and give effect to its language read in the light of the relation of the parties concerned and the circumstances attending its execution. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

In construing a will, the court is not bound by what the testator meant to say, but what he meant by what he did say. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

13. Conditional devises.

A devise to a woman, conditioned that she remain unmarried, creates a determinable fee simple which becomes absolute upon her death unmarried. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

14. Future and uncertain contingencies.

Court of equity would not construe will as to future and uncertain contingencies; but only when such construction was needed to direct executor as to some present act. Morse v. Lyman, 64 Vt. 167, 24 A. 763 (1891).

15. Remainder interests.

The absence in a will of any provision for disposition of a remainder interest in real estate must be considered strong evidence that the testator intended to dispose of the fee by his will. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

16. Ineffectual residuary legacies.

A lapsed or otherwise ineffectual residuary legacy becomes part of the residue and passes with the balance of the residue to the remaining residuary legatees, unless a contrary disposition is demonstrably applicable. In re Slack Trust, 126 Vt. 37, 220 A.2d 472 (1966).

17. Reference to statutory rights.

The phrase "statutory rights", as used in clause of will to the effect that provision made for surviving widow was in lieu of her statutory rights, has reference to rights granted to the widow by statute and to which she is absolutely entitled. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

18. Stock splits.

A stock split which directly results in a reduction of the market value per share of the original securities which were the subject of a bequest, does not result in a reduction of the substance of the bequest, unless a contrary intention on the part of the testator appears, so that the legatee in entitled to the increased number of shares in addition to those bequeathed. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

19. Evidence.

Extrinsic evidence is not admissible either to show that testator misunderstood the legal meaning of the will or was mistaken as to the import of ambiguous language. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

Cited. Eckstein v. Estate of Dunn, 174 Vt. 575, 816 A.2d 494 (mem.) (2002).

§ 118. Referral to Superior Court.

The Probate Division of the Superior Court may, on its own motion or upon motion of an interested person, refer a matter directly to the Civil Division of the Superior Court for the purpose of conserving judicial resources. The Probate Division shall consult with and obtain the consent of the Civil Division before making a transfer pursuant to this section. A decision of the Civil Division whether to consent to a transfer under this section shall be final and shall not be appealed.

Added 2017, No. 195 (Adj. Sess.), § 2.

CHAPTER 4. INTERNATIONAL WILLS

Sec.

§ 131. Definitions.

As used in this chapter:

  1. "International will" means a will executed pursuant to the requirements of this chapter.
  2. "Authorized person" and "person authorized to act in connection with international wills" means a person who is authorized to supervise the execution of international wills pursuant to this chapter or federal law, including a member of the diplomatic and consular service of the United States designated by Foreign Service Regulations.

    Added 2019, No. 11 , § 1.

§ 132. Validity.

  1. A will made in the form of an international will in compliance with the requirements of this chapter shall be valid with regard to form, irrespective of the place where it is made, the location of the assets, or the nationality, domicile, or residence of the testator.
  2. The invalidity of a will as an international will shall not affect its formal validity as a will of another kind.
  3. This chapter shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

    Added 2019, No. 11 , § 1.

§ 133. Requirements.

  1. An international will shall comply with the following requirements:
    1. The will shall be in writing. It need not be written by the testator, and may be written in any language, by hand or by any other means.
    2. The testator shall declare in the presence of two or more witnesses and of a person authorized to act in connection with international wills that the document is the testator's will and that the testator knows its contents. The testator is not required to inform the witnesses or the authorized person of the contents of the will.
    3. The testator shall sign the will in the presence of the witnesses and the authorized person. If the testator has previously signed the will, the testator shall acknowledge his or her signature in the presence of the witnesses and the authorized person.
    4. If the testator is unable to sign, the absence of his or her signature shall not affect the validity of the international will if the testator indicates the reason for his or her inability to sign and the authorized person notes it in the will. Although it is not required, in such cases any other person present, including the authorized person or one of the witnesses, may at the direction of the testator sign the testator's name for him or her. If another person signs for the testator, the authorized person shall note it in the will.
    5. The witnesses shall attest the will by signing it in the presence of the testator and each other.

      Added 2019, No. 11 , § 1.

§ 134. Other points of form.

  1. The signatures shall be placed at the end of the will. If the will consists of more than one sheet, each sheet shall be numbered and signed by the testator or, if he or she is unable to sign, by the person signing on the testator's behalf. If no person signs on the testator's behalf, the authorized person shall sign each sheet.
  2. The date of the will shall be the date of its signature by the authorized person, who shall note the date at the end of the will.
  3. The authorized person shall ask the testator whether he or she wishes to make a declaration concerning the safekeeping of the testator's will. If the testator makes such a declaration, the place where he or she intends to have his or her will kept shall be stated in the authorized person's certificate required by section 135 of this title.
  4. A will executed in compliance with section 133 of this title shall not be invalid because it does not comply with this section.

    Added 2019, No. 11 , § 1.

§ 135. Certificate.

  1. The authorized person shall sign and attach to the will a certificate establishing that there has been compliance with the requirements of this chapter for valid execution of an international will. The authorized person shall keep a copy of the certificate and deliver another copy to the testator.
  2. The certificate required by this section shall be in substantially the following form:

    Added 2019, No. 11 , § 1.

CERTIFICATE OF AUTHORIZED PERSON

I, ______________ (name, address, and capacity), a person authorized to act in connection with international wills, certify that on ______________ (date), at ______________ (place), testator______________ (testator's name, address, and date and place of birth), in my presence and that of the witnesses ______________ (name, address, and place and date of birth of first witness) and ______________ (name, address, and place and date of birth of second witness) has declared that the attached document is his or her will and that he or she knows its contents. I further certify that: (1) In my presence and in that of the witnesses: (A) the testator has signed the will or has acknowledged his or her signature previously affixed; or (B) (If Necessary) following a declaration of the testator stating that he or she was unable to sign his or her will for the following reason ______________, I have mentioned this declaration in the will and the signature has been affixed by ______________ (name and address). (2) The witnesses and I have signed the will. (3) Each page of the will has been signed by ______________ and numbered. (4) I have satisfied myself as to the identity of the testator and of the witnesses as designated above. (5) The witnesses met the conditions requisite to act as such according to the law under which I am acting. (6) (If Necessary) The testator has requested me to include the following statement concerning the safekeeping of his or her will: ______________. __________________________________________________________________________

(SIGNATURE, DATE AND PLACE OF EXECUTION)

§ 136. Effect of certificate.

In the absence of contrary evidence, a certificate by an authorized person that complies with the requirements of section 135 of this title shall be conclusive as to the formal validity of the instrument as a will under this chapter. The absence or irregularity of a certificate by an authorized person shall not affect the validity of a will under this chapter.

Added 2019, No. 11 , § 1.

§ 137. Revocation.

An international will may be revoked in any manner permitted by section 11 of this title.

Added 2019, No. 11 , § 1.

§ 138. Source and construction.

Sections 131-137 of this chapter are derived from the Annex to the Convention on Providing a Uniform Law on the Form of an International Will, October 26, 1973. When interpreting and applying this chapter, courts shall be guided by its international origin and by the need for uniformity in its interpretation.

Added 2019, No. 11 , § 1.

§ 139. Authorized persons.

A person who is admitted in good standing and has an active law license to practice law in this State shall be an authorized person in relation to international wills.

Added 2019, No. 11 , § 1.

§ 140. Self proved.

A will that meets the requirements of this chapter is self-proved and shall be allowed by the probate court.

Added 2019, No. 11 , § 1.

CHAPTER 5. NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS

Sec.

§ 201. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 201, which was derived from 1975, No. 240 (Adj. Sess.), § 6, related to method and time of giving notice in estate litigation.

§ 202. When parties bound by others.

In judicial proceedings involving trusts under this title or estates of decedents, minors, or persons under guardianship, the following apply:

  1. Persons are bound by orders binding others in the following cases:
    1. Orders binding the sole holder or all co-holders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
    2. To the extent there is no conflict of interest between them or among persons represented, orders binding a guardian bind the person whose estate he or she controls; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no guardian has been appointed, a parent may represent his or her minor child.
    3. An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his or her interest is adequately represented by another party having a substantially identical interest in the proceeding.
  2. At any point in a proceeding, a Probate Division of the Superior Court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
  3. Parties shall be those persons so defined by the Rules of Probate Procedure.

    Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 24; 2009, No. 20 , § 6; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subdiv. (2): Substituted "probate division of the superior court" for "probate court."

Amendments--2009. In the undesignated paragraph, inserted "under this title" following "trusts".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Parties generally, see Rule 17, V.R.P.P.

Representative parties, see Rule 18, V.RP.P.

§ 203. Probate proceedings; service; jurisdiction over persons.

In proceedings within the exclusive jurisdiction of the Probate Division of the Superior Court where notice is required, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this State by notice in conformity with law or the Rules of Probate Procedure. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.

Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 25; 2009, No. 154 (Adj. Sess.), § 121, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Inserted "probate" preceding "proceedings" and deleted "within the exclusive jurisdiction of probate court" thereafter in the section heading, and inserted "division of the superior" preceding "court" in the first sentence.

Amendments--1985 (Adj. Sess.). Inserted "probate" preceding "court" in the section heading and inserted "probate" preceding "court where notice is required" and deleted "by this title or by rule" thereafter and substituted "law or the rules of probate procedure" for "section 201 of this title" following "conformity with" in the first sentence.

Cross References

Cross references. Notice and service in probate proceedings generally, see Rules 4, 5 and 5.1, V.R.P.P.

Parties and persons bound by orders generally, see Rules 17 and 18, V.R.P.P.

§ 204. Definitions.

As used in this title:

  1. "Interested person" includes heirs, devisees, legatees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, or person under guardianship that may be affected by the proceeding. It also includes persons having priority for appointment as executor or administrator, and other fiduciaries representing interested persons. The parties at commencement of a probate proceeding shall include all interested persons. The meaning as it relates to particular persons may vary from time to time and shall be determined by the Rules of Probate Procedure.
  2. "Fiduciary" includes executor, administrator, special administrator, trustee, conservator, guardian of a minor, guardian of a spendthrift, voluntary guardian of a person who has an infirmity and total or limited guardian of an adult with a developmental disability, but excludes one who is merely a guardian ad litem.
  3. "Special fiduciary" means an individual appointed as provided by the Rules of Probate Procedure to assume the duties of a fiduciary suspended by the court.
  4. "Executor" includes administrator with the will annexed.

    Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 26; 2013, No. 96 (Adj. Sess.), § 62.

History

2002. Rewrote the section heading by deleting "interested person; fiduciary; special fiduciary; executor" from the end and redesignated subsecs. (a)-(d) as subdivs. (1)-(4) to conform section to V.S.A. style.

Amendments--2013 (Adj. Sess.). Undesignated paragraph: Substituted "As" for "Whenever" preceding "used".

Subdiv. (1): Substituted "person under guardianship" for "ward" following "of a decedent, or".

Subdiv. (2): Substituted "a" for "an infirm" preceding "person" and "an" for "mentally disabled" preceding "adult", and inserted "who has an infirmity" following "person" and "with a developmental disability" following "adult".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Appointment of special fiduciary, see § 3011 of this title.

Fiduciaries generally, see Rule 67, VR.P.P.

Foreign fiduciaries and sureties, see Rule 68, V.R.P.P.

Parties in probate proceedings generally, see Rule 17, V.R.P.P.

ANNOTATIONS

Cited. In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984 (1992).

PART 2 Descent and Distribution

CHAPTER 41. SURVIVORS' RIGHTS AND ALLOWANCES

Sec.

Cross References

Cross references. Disclaimer of property interests, see § 1951 et seq. of this title.

§§ 401-408. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 401, relating to share of surviving spouse of decedent, was derived from V.S. 1947, § 3018; 1947, No. 202 , § 3041; P.L. § 2823; G.L. § 3278; P.S. § 2804; 1906, No. 83 , § 1; V.S. § 2418; 1888, No. 76 ; R.L. § 2108; G.S. 51, § 1. R.S. 47, § 1; 1838, No. 18 ; 1821, p. 55; 1804, p. 127. R. 1797, p. 224, § 31; 1793, p. 60; R. 1787, p. 59.

Former § 402, relating to waiver of will by surviving spouse, was derived from V.S. 1947, § 3019; 1947, No. 202 , § 3042; P.L. § 2824; G.L. § 3279; P.S. § 2805; 1906, No. 83 , § 2; V.S. § 2419; 1888, No. 76 .

Former § 403, relating to surviving spouse to receive household goods, was derived from V.S. 1947, § 3020; 1947, No. 202 , § 3043; P.L. § 2825; 1933, No. 157 , § 2612; 1919, No. 84 ; G.L. § 3281; P.S. § 2807; 1904, No. 68 , §§ 1, 2 and amended by 1985, No. 144 (Adj. Sess.), § 27.

Former § 403a, relating to surviving spouse; vessel, snowmobile, or all-terrain vehicle, was derived from 2001, No. 107 (Adj. Sess.), § 25.

Former § 404, relating to support of surviving spouse and family during settlement, was derived from 1953, No. 214 ; V.S. 1947, § 3021; 1947, No. 202 , § 3044; P.L. § 2826; G.L. § 3282; P.S. § 2808; V.S. § 2420; R.L. § 2109; G.S. 49, § 29; G.S. 51, § 1; R.S. 45, § 29; R.S. 47, § 1; 1838, No. 14 and amended by 1959, No. 262 , § 28 and 1985, No. 144 (Adj. Sess.), § 28.

Former § 405, relating to allowance to children before payment of debts, was derived from V.S. 1947, § 3022; P.L. § 2827; G.L. § 3283; P.S. § 2809; V.S. § 2421; R.L. § 2110; G.S. 51, § 1; R.S. 47, § 1; 1821, p. 51; 1803, p. 108 and amended by 1959, No. 262 , § 29.

Former § 406, relating to allowance to children, after payment of debts, was derived from V.S. 1947, § 3023; 1947, No. 202 , § 3046; P.L. § 2828; G.L. § 3284; P.S. § 2810; V.S. § 2422; R.L. § 2111; G.S. 57, § 1; R.S. 53, § 1; 1821, p. 50; R. 1797, p. 225, § 34.

Former § 407, relating to realty to be sold, if personalty insufficient, was derived from V.S. 1947, § 3024; P.L. § 2829; G.L. § 3285; P.S. § 2811; V.S. § 2423; R.L. § 2112; G.S. 57, § 2; 1846, No. 35 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 29.

Former § 408, relating to rules applicable to sales of realty, was derived from V.S. 1947, § 3025; P.L. § 2830; G.L. § 3286; P.S. § 2812; V.S. § 2424; R.L. § 2113; G.S. 57, § 3; 1846, No. 35 , § 2.

Annotations From Former § 401

1. Construction.

Statutory right of widow to one-third of deceased husband's personalty is analogous to homestead and dower rights, is to safeguard interests of wife, predicated upon sound public policy, and is highly favored by law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

Change in statute providing that widow shall receive at least one-third of her "intestate" husband's personal estate, in revision of statute, by substituting words "of the deceased" for word "intestate," will not be presumed to have been intended to work change in law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

2. Rights of surviving spouse .

Statutory rights of widow are homestead, statutory dower, and at least one-third of deceased husband's personal property and none can lawfully or effectually be willed away from her without her assent. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

*3. Vesting.

The widow's right, under this section, to her share of the personal estate vests in her immediately upon the death of her husband; the property being immediately hers, the income is likewise hers, just as is the income from a widow's one-third interest in her husband's real estate. In re Estate of Hurlbut, 126 Vt. 562, 238 A.2d 68 (1967).

Right of wife to any part of husband's personal property is inchoate as long as he lives, and may be defeated by him by sale or gift made in good faith, but at his decease her inchoate right immediately becomes vested and complete. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

*4. Testate estate.

There is no right in surviving spouse as to one-third interest in personal property, under this section, in a testate estate, unless such surviving spouse waives the provisions made for him or her in will of decedent. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

5. Conveyance to defraud spouse of share.

Conveyance by husband, shortly before his death, of all his property, both real and personal, to his children, without any valuable consideration, and with intent to defeat his wife of her dower and her share of the personal estate, securing at same time to himself possession, use and control of it during his life, is fraudulent against the claims of wife, and will be set aside. Thayer v. Thayer, 14 Vt. 107 (1842).

6. Effect of separation of spouses.

Though the wife separate from husband by reason of family discord, yet such separation is no forfeiture of her right of dower and her share of personal estate, though she may have no justifiable cause of separation. Thayer v. Thayer, 14 Vt. 107 (1842).

7. Decease of surviving spouse before assignment of share.

Decree of the probate court distributing estate of deceased husband is void so far as it includes money derived from sale of homestead right, or personal property, owned by his widow, whose death was subsequent to that of her husband, and whose estate was unadministered. Probate Court v. Winch, 57 Vt. 282 (1884).

One-third of personal estate of an intestate husband vests in his widow immediately upon his decease, and in case of decease of widow before assignment by probate court, the same passes to her legal representative. Estate of Johnson v. Estate of Johnson, 41 Vt. 467 (1868).

8. Intention of testator.

Where an intent on part of testator may be gathered that his surviving spouse shall take both a legacy and her statutory rights under this section, testator's intention will be given effect and no waiver will be required; but such an intent is conclusively excluded when testator leaves his entire estate to his widow. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

Where testator left legacy to his widow to be in addition to her statutory rights, she did not take against will, but under it, and since testator intended that she take both, his intention was to be given effect, it not being contrary to law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

Widow could take statutory share under this section although given legacy under will, where testator so intended, since words "not lawfully disposed of by the deceased's last will" show that not all of personal estate could lawfully be disposed of by will, that part being the statutory share under section. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

9. Wearing apparel.

If it does not otherwise appear, the legal presumption is that a wife's wardrobe was furnished by husband, it being his duty to furnish it, and upon her decease it belongs to husband and is no part of wife's estate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

Neither the watch, or its chain, key and seals or the finger ring which were usually worn by a person when living, are to be deemed a part of his wearing apparel, which, after his decease, are to go to his widow; otherwise in reference to a bosom pin. Sawyer v. Heirs of Sawyer, 28 Vt. 249 (1856).

The sword and sword-belt, which an officer in the United States navy wore, in accordance with the regulations of the navy department, are not regarded as a part of his wearing apparel, but epaulets are. Sawyer v. Heirs of Sawyer, 28 Vt. 249 (1856).

10. Selection of property assigned to surviving spouse.

It is a legal exercise of the powers of the court of probate to determine the amount of the personal estate to which the widow is entitled, leaving it for her to make the selection of the articles, to make up the amount of the assignment from the inventory at their appraised value. Phelps v. Phelps, 16 Vt. 73 (1844).

Annotations From Former § 402

1. Purpose.

The statutory right of a widow to a specific share in the estate of her deceased husband is designed to protect the widow by assuring her at least her statutory share, in the same fashion as though her husband had died intestate. In re Estate of Davis, 129 Vt. 162, 274 A.2d 491 (1971).

2. Federal estate tax.

Although testator freed his surviving spouse of any tax burden on her share under will, when, under this section, widow elected to take against the will, she rejected the tax benefit, and her share became subject to the prior deduction of the federal estate tax from the net estate. In re Estate of Hurlbut, 126 Vt. 562, 238 A.2d 68 (1967).

3. Waiver by others.

The privilege under this section to waive the will is personal to the widow, and cannot be undertaken by her representative after her death. In re Estate of Davis, 129 Vt. 162, 274 A.2d 491 (1971).

Annotations From Former § 404

1. Right to allowance.

The surviving widow does not have an absolute right to have an allowance under this section. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

An allowance under this section is not a statutory right and is not in the same class of rights as homestead and dower. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

A widow is entitled to an allowance for maintenance, though there are no children. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856).

2. Discretion of court.

Probate court may, in its discretion, grant or deny a surviving widow's application for an allowance under this section, or make a conditional award, depending on the circumstances and the provisions made for her in her husband's will. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The court has in all cases power to grant support to the widow and children pending settlement of an estate, whether or not there is a will, whether or not the widow waives the provisions of the will, and whether or not there is a residuary clause. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

An allowance under this section is necessary for the immediate and continuing support of the widow, etc., and the order is within the discretion of the probate court, and conclusive. Leach v. Executor of Leach, 51 Vt. 440 (1879).

Amount of allowance was a matter resting in discretion of probate court, or of county court upon an appeal; and was not ordinarily subject to revision, upon exceptions, in supreme court. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856).

3. Provisions in will.

The surviving widow does not waive her right to make application for an allowance pursuant to this section by taking under the will unless the will by clear and unequivocal language shows an intention by the testator that the provisions for his widow in the will are in lieu of her statutory allowance for support pending settlement. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Where oratrix was bequeathed a legacy and annuity by her husband's will, and, in good faith, appealed from the allowance of the will by the probate court, and during the pendency of the appeal the probate court allowed her unconditionally a certain sum from the estate for her support, this allowance was independent of her legacy and annuity under will, and executors or heirs could not treat it as in part payment thereof. Meech v. Weston, 33 Vt. 561 (1861).

4. Enforcement of order.

A judge of probate can lawfully cause an executor to be imprisoned, who wilfully refuses to perform an order of the probate court, directed to him to pay monthly certain sums of money for the maintenance of the testator's widow and children during the settlement of the estate. Leach v. Peabody, 58 Vt. 485, 2 A. 737 (1886).

5. Payment.

This section does not require the allowance to be made in advance of the expenditure. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856); Huntley v. Denny, 65 Vt. 185, 26 A. 486 (1892).

6. Expense of administration.

An allowance for the surviving widow pursuant to this section is an expense of administration. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

7. Reimbursement of executor.

Executor may reimburse himself for what he has properly expended in the support of the minors, whether he advanced this amount out of his private means, or took it from the specific funds of the estate. Huntley v. Denny, 65 Vt. 185, 26 A. 486 (1892).

8. Approval by court.

The amount paid to the surviving widow for support during administration of the estate may be approved by the probate court for the first time on final hearing of the executor's account. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

9. Appeals.

An allowance for support of the surviving widow pursuant to this section becomes part of the final order and decree of the probate court and is subject to appeal on the factual question of necessity and reasonableness. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The factual issues of necessity and reasonableness, upon which an allowance for the surviving widow pursuant to this section is based, may only be reviewed by way of appeal to the county court. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

If the factual issues upon which a discretionary order of the probate court allowing support for the surviving widow are not appealed to the county court, the facts which underlie the allowance are settled and binding upon appeal to the supreme court. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Cited. In re Estate of Prouty, 105 Vt. 66, 163 A. 566 (1933).

§ 409. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 409, relating to assignment of estates not exceeding three hundred dollars, was derived from V.S. 1947, § 3026; P.L. § 2831; G.L. § 3287; P.S. § 2813; V.S. § 2425; 1888, No. 75 ; 1886, No. 57 ; 1882, No. 60 ; R.L. § 2114; G.S. 51, § 1; G.S. 53, § 2; 1843, No. 13 ; R.S. 47, § 1; 1827, No. 11 , § 3; 1821, p. 64; 1804, p. 27.

CHAPTER 42. DESCENT AND SURVIVORS' RIGHTS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SURVIVORS' RIGHTS AND ALLOWANCES

SUBCHAPTER 3. DESCENT, OMITTED ISSUE, AND LAPSED LEGACIES

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 301. Intestate estate.

  1. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs, except as modified by the decedent's will.
  2. A decedent's will may expressly exclude or limit the right of an individual or a class to inherit property. If such an individual or member of such a class survives the decedent, the share of the decedent's intestate estate that would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.
  3. Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

History

Applicability of chapter. 2009, No. 55 , § 5 provides in relevant part: "Sec. 5 of this act [which enacted Chapter 42 of this title] shall apply only to the estates of persons dying on or after the effective date of Sec. 5 [June 1, 2009] of this act."

§ 302. Dower and curtesy abolished.

The estates of dower and curtesy are abolished.

Added 2009, No. 55 , § 5, eff. June 1, 2009

§ 303. Afterborn heirs.

For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

Subchapter 2. Survivors' Rights and Allowances

§ 311. Share of surviving spouse.

After payment of the debts, funeral charges, allowances to the surviving spouse and children pursuant to sections 316 and 317 of this title, and expenses of administration, the intestate share of the decedent's surviving spouse is as follows:

  1. The surviving spouse shall receive the entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent's surviving descendants are also descendants of the surviving spouse.
  2. In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse and are not excluded by the decedent's will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Inserted "allowances to the surviving spouse and children pursuant to sections 316 and 317 of this title" following "charges," in the introductory paragraph.

§ 312. Surviving spouse to receive household goods.

Upon motion, the surviving spouse of a decedent may receive out of the decedent's estate all furnishings and furniture in the decedent's household. If any objection is made, the Probate Division of the Superior Court shall decide what, if any, of such personalty shall pass under this section. Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law. In making a determination pursuant to this section, the Probate Division of the Superior Court may consider the length of the decedent's marriage or civil union, the sentimental and monetary value of the property, and the source of the decedent's interest in the property.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Deleted "when the decedent leaves no descendants who object" following "household" in the first sentence and "by any of the descendants" following "made" in the second sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "court".

§ 313. Surviving spouse; vessel, snowmobile, or all-terrain vehicle.

Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse. The surviving spouse may register the vessel, snowmobile, or all-terrain vehicle pursuant to 23 V.S.A. § 3816 .

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 314. Share of heirs other than surviving spouse.

  1. The balance of the intestate estate not passing to the decedent's surviving spouse under section 311 of this title passes to the decedent's descendants by right of representation.
  2. If there is no taker under subsection (a) of this section, the intestate estate passes in the following order:
    1. to the decedent's parents equally if both survive or to the surviving parent;
    2. to the decedent's siblings and the descendants of any deceased siblings by right of representation;
    3. one-half of the intestate estate to the decedent's paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent's maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;
    4. in equal shares to the next of kin in equal degree.
  3. If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 315. Parent and child relationship.

  1. For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child.
  2. The parent and child relationship may be established in parentage proceedings under Title 15C.
  3. A parent shall not inherit from a child conceived of sexual assault who is the subject of a parental rights and responsibilities order issued pursuant to 15 V.S.A. § 665(f) .

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 44 , § 6, eff. May 23, 2017; 2017, No. 195 (Adj. Sess.), § 3.

History

2018. The text of this section is based on the harmonization of two amendments. This section was amended by 2017, No. 44 , § 6 and 2017, No. 195 (Adj. Sess.), § 3, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature in 2017 and 2018, the text of these two acts were merged to arrive at a single version of this section. The changes that each of the amendments made are described in amendment notes set out below.

Amendments--2017 (Adj. Sess.). Substituted "Title 15C" for "subchapter 3A of chapter 5 of Title 15" at the end of the second sentence.

Amendments--2017. Added the subsec. (a) and (b) designations; made stylistic changes in subsec. (b); and added subsec. (c).

§ 316. Allowances for surviving spouse and family during administration.

The Probate Division of the Superior Court may make reasonable allowance for the necessary expenses of support and maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted. This allowance may take priority, in the discretion of the court, over debts of the estate.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "allowance for" for "support of" and "administration" for "settlement" in the section heading, inserted "necessary" preceding "expenses" and inserted "support and" preceding "maintenance" in the first sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

§ 317. Allowance to children before payment of debts.

The court may make reasonable allowance for the necessary expenses of support and maintenance of any children of the decedent until they reach 18 years of age. The court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support. The allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 318. Allowance to children after payment of debts.

Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of support and maintenance of the children of the decedent until they reach 18 years of age. The Probate Division of the Superior Court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "after" for "before" preceding "payment" in the section heading, and substituted "of support and maintenance of" for "of the support of" and "until they reach 18 years of age" for "under 18 years of age until they arrive at that age" in the first sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

§ 319. Elective share of surviving spouse; notice of rights.

  1. Subject to subsection (d) of this section, a surviving spouse may elect to waive the provisions of the decedent's will and in lieu thereof elect to take one-half of the balance of the probate estate, after the payment of allowances, claims, and expenses.
  2. The surviving spouse must be living at the time this election is made. An election under this section may be signed on behalf of the surviving spouse by a guardian, an agent, or an attorney-in-fact under a power of attorney that:
    1. expressly grants the authority to make the election; or
      1. grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and (2) (A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and
      2. does not expressly exclude the authority to make the election.
  3. An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (b)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.
  4. A surviving spouse may not elect against a deceased spouse's will under this section if the surviving spouse has waived the right to elect against the deceased spouse's will pursuant to section 323 of this title.
    1. The court shall provide the surviving spouse with a notice of the rights of the surviving spouse not later than 30 days from the filing of the initial inventory. (e) (1)  The court shall provide the surviving spouse with a notice of the rights of the surviving spouse not later than 30 days from the filing of the initial inventory.
    2. Unless otherwise ordered by the court, a surviving spouse shall file with the court a written election to waive the provisions of a decedent's will within four months of the later of the following dates:
      1. the date of service of the notice of rights of surviving spouse; or
      2. the date of service of the inventory.
  6. Upon the filing of any subsequent or amended inventory or any accounting that reports previously undisclosed property owned by the decedent as of the date of death, the surviving spouse shall have 30 days from the date of service of the filing to elect against the newly reported property, unless otherwise ordered by the court.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 320. Effect of divorce order.

A final divorce or dissolution order from any state shall nullify a gift by will to an individual who was the decedent's spouse at the time the will was executed and any nomination of the spouse as executor, executrix, trustee, guardian, or other fiduciary as named in the will, if the decedent was no longer married to or in a civil union with that individual at the time of death, unless the decedent's will specifically states to the contrary.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 321. Conveyance to defeat spouse's interest.

  1. A voluntary transfer of any property by an individual during a marriage or civil union and not to take effect until at or after the individual's death, made without adequate consideration and for the primary purpose of defeating a surviving spouse's right to claim the survivor's intestate or elective share of the decedent's property so transferred, shall be void and inoperative to bar the claim, unless the surviving spouse waived the survivor's right to make a claim against the deceased spouse's estate or the property transferred pursuant to section 323 of this title. If the surviving spouse has not signed a waiver of spousal rights pursuant to section 323 of this title, then the decedent shall be deemed at the time of his or her death to be the owner of the property and the court may:
    1. increase the surviving spouse's share of the decedent's probate estate in an amount the court deems reasonable to account for the right the surviving spouse would otherwise have had in the property so transferred; or
    2. if the assets of the decedent's probate estate are insufficient to account for the right the surviving spouse would otherwise have had in the property, then order any other equitable relief the court deems appropriate.
  2. Neither this section nor any other provision of this title shall be construed to affect an enhanced life estate deed. As used in this subsection, "enhanced life estate deed," also known as a "Ladybird deed," shall mean a deed that conveys a future interest in real estate that is revocable or otherwise subject to limitation, with the transfer of the remaining title rights to take place when the grantor dies.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. "Share".

Term "share" in the statute entitled "Conveyance to defeat spouse's interest" plainly refers to a surviving spouse's elective or intestate share. This is consistent with the history of the law in this area, the statutory scheme, and the purpose of the statute. Hayes v. Hayes, 208 Vt. 380, 198 A.3d 1263 (2018).

2. Election.

Because the wife took under her husband's will, she was barred from seeking her statutory share of his estate. Hayes v. Hayes, 208 Vt. 380, 198 A.3d 1263 (2018).

§ 322. Unlawful killing affecting inheritance.

Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case in which an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, the individual's share in the decedent's estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if the individual intentionally and unlawfully kills the decedent. In any proceedings to contest the right of an individual to inherit or receive property under a will or otherwise, the record of that individual's conviction of intentionally and unlawfully killing the decedent shall be admissible in evidence and shall conclusively establish that the individual did intentionally and unlawfully kill the decedent.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "individual's" and "individual".

§ 323. Written waiver of spousal rights.

  1. At any time before or during a marriage, a spouse may waive the right to an elective share of a deceased spouse's estate, waive the right to a homestead or other allowance, and waive any other spousal rights or interest in property, in whole or in part, by a written instrument signed by the waiving spouse.
  2. A written waiver of spousal rights is presumed to be valid unless the party contesting the waiver demonstrates that:
    1. the waiver was not voluntary, or was made as a result of fraud, duress, or coercion;
    2. the waiver was unconscionable when signed or is unconscionable in its application due to a material change in circumstances that arose subsequent to the execution of the instrument through no fault or no action of the contesting party;
    3. before signing the waiver, the waiving spouse was not provided fair and reasonable disclosure of the property and financial obligations of the decedent; or
    4. before signing the waiver, the waiving spouse did not have an opportunity for meaningful access to independent counsel.
  3. A waiver under this section may be signed on behalf of a waiving spouse by a guardian or by an agent or an attorney-in-fact under a power of attorney that:
    1. expressly grants the authority to make the election; or
      1. grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and (2) (A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and
      2. does not expressly exclude the authority to make the election.
  4. An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (c)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.

    Added 2017, No. 195 (Adj. Sess.), § 3.

Subchapter 3. Descent, Omitted Issue, and Lapsed Legacies

§ 331. Degrees; how computed: kindred of half-blood.

Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 332. Share of afterborn child.

When a child of a testator is born after the making of a will and provision is not made in the will for that child, he or she shall have the same share in the estate of the testator as if the testator had died intestate unless it is apparent from the will that it was the intention of the testator that provision should not be made for the child.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Deleted "therein" preceding "made" and inserted "in the will" following "made".

§ 333. Share of child or descendant of child omitted from will.

When a testator omits to provide in the testator's will for any child of the testator, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the testator's" for "his or her" preceding "will" and "child of the testator" for "of his or her children" following "any".

§ 334. Afterborn and omitted child; from what part of estate share taken.

When a share of a testator's estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any. If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will. If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from the apportionment and a different apportionment adopted in the discretion of the court.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "apportionment and" in the last sentence.

§ 335. Beneficiary dying before testator; descendants to take.

When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, the descendants shall take the gift that the designated beneficiary would have taken if the designated beneficiary had survived the testator, unless a different disposition is required by the will.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "descendants" and "the designated beneficiary" for "he or she" preceding "had".

§ 336. Individual absent and unheard of; share of estate.

If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the court in which the decedent's estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent's will or the laws of intestacy as if the absent individual had not survived the decedent. If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof that any other individual received under order. Before an order is made for the payment or distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). In the first sentence, deleted "probate" preceding "court" and substituted "the" for "such" preceding "absent individual had".

§ 337. Requirement that individual survive decedent for 120 hours.

Except as provided in the decedent's will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent's will, and the decedent's heirs and beneficiaries shall be determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in escheat.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 338. Distribution; order in which assets appropriated; abatement.

    1. Except as provided in subsection (b) of this section, shares of distributees given under a will abate, without any preference or priority as between real and personal property, in the following order: (a) (1)  Except as provided in subsection (b) of this section, shares of distributees given under a will abate, without any preference or priority as between real and personal property, in the following order:
      1. property not disposed of by the will;
      2. residuary devises and bequests;
      3. general devises and bequests;
      4. specific devises and bequests.
    2. For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
  2. If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.
  3. If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

CHAPTER 43. ESTATES IN LIEU OF DOWER AND CURTESY

Sec.

Cross References

Cross references. Disclaimer of property interests, see § 1951 et seq. of this title.

Surviving spouses interest in homestead, see § 105 of Title 27.

§§ 461-475. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 461, relating to interest of widow in real estate, was derived from V.S. 1947, § 3027; P.L. § 2951; 1933, No. 157 , § 2738; 1929, No. 46 , § 1; G.L. § 3401; 1917, No. 87 ; P.S. § 2921; 1896, No. 44 , § 1; V.S. § 2528; R.L. § 2215. G.S. 55, § 1; R.S. 51, § 1; 1821, p. 55; R. 1797, p. 225, § 32; R. 1787, p. 55.

Former § 462, relating to widow's interest in mortgaged lands, was derived from V.S. 1947, § 3028; P.L. § 2952; G.L. § 3402; P.S. § 2922; 1896, No. 44 , § 2; V.S. § 2529; R.L. § 2216. G.S. 55, § 2; R.S. 51, § 2.

Former § 463, relating to redemption; how set out, was derived from V.S. 1947, § 3029; 1947, No. 202 , § 3052; P.L. § 2953; G.L. § 3403; P.S. § 2923; 1896, No. 44 , § 3; V.S. § 2530; R.L. § 2217; G.S. 55, § 3; R.S. 51, § 3.

Former § 464, relating to when administrator to redeem; widow's rights, was derived from V.S. 1947, § 3030; P.L. § 2954; G.L. § 3404; P.S. § 2924; 1896, No. 44 , § 4; V.S. § 2531; R.L. 2218; G.S. 55, § 4; R.S. 51, § 4.

Former § 465, relating to widow's interest, how barred, was derived from V.S. 1947, § 3031; P.L. § 2955; G.L. § 3405; P.S. § 2925; 1896, No. 44 , § 5; V.S. § 2532; R.L. § 2219. 1864, No. 66 ; G.S. 55, §§ 5, 6; R.S. 51, §§ 5-7; 1829, No. 9 ; 1821, p. 56; 1819, p. 16; 1818 p. 77; 1799, p. 3. R. 1797, p. 225, § 32; R. 1787, p. 55.

Former § 466, relating to assignment of widow's interest, was derived from V.S. 1947, § 3032; P.L. § 2956; G.L. § 3406; P.S. § 2926; 1896, No. 44 , § 6; V.S. § 2533; R.L. § 2220. G.S. 55, § 7; R.S. 51, § 8; 1821, p. 56; R. 1797, p. 256, § 90; R. 1787, p. 56 and amended by 1985, No. 144 (Adj. Sess.), § 30.

Former § 467, relating to partition first, if estate held in common, was derived from V.S. 1947, § 3033; P.L. § 2957; G.L. § 3407; P.S. § 2927; 1896, No. 44 , § 7; V.S. § 2534; R.L. § 2221. G.S. 57, § 13; R.S. 53, § 11; 1821, p. 60.

Former § 468, relating to recording; effect, was derived from V.S. 1947, § 3034; P.L. § 2958; G.L. § 3408; P.S. § 2928; 1896, No. 44 , § 8; V.S. § 2535; R.L. § 2222. G.S. 55, § 8; R.S. 51, § 9; 1921, p. 56; R. 1797, p. 256, § 90; R. 1787, p. 56 and amended by 1971, No. 179 (Adj. Sess.), § 5; and 1985, No. 144 (Adj. Sess.), § 31.

Former § 469, relating to estate to be sold if indivisible, was derived from V.S. 1947, § 3035; P.L. § 2959; G.L. § 3409; P.S. § 2929; 1896, No. 44 , § 9; V.S. § 2536; R.L. § 2223. G.S. 55, § 9; R.S. 51, § 10; 1821, p. 56; R. 1797, p. 256, § 91 and amended by 1985, No. 144 (Adj. Sess.), § 32.

Former § 470, relating to widow may occupy until interest set out, was derived from V.S. 1947, § 3036; P.L. § 2960; G.L. § 3410; P.S. § 2930; 1896, No. 44 , § 10; V.S. § 2537; R.L. § 2224. G.S. 55, § 10; R.S. 51, § 11.

Former § 471, relating to reassignment of widow's interest, was derived from V.S. 1947, § 3037; P.L. § 2961; G.L. § 3411; P.S. § 2931; 1896, No. 44 , § 11; V.S. § 2538; R.L. § 2225. G.S. 55, § 11; R.S. 51, § 12.

Former § 472, relating to widow of insolvent; agreement with creditors, was derived from V.S. 1947, § 3038; 1947, No. 202 , § 3061; P.L. § 2962; G.L. § 3412; P.S. § 2932; 1896, No. 44 , § 12; V.S. § 2539; R.L. § 2226; G.S. 55, § 12; R.S. 51, § 13. 1821, p. 68; R. 1797, p. 254, § 88; R. 1787, p. 58.

Former § 473, relating to fraudulent conveyances to defeat widow's interest, was derived from V.S. 1947, § 3039; P.L. § 2963; G.L. § 3413; R.S. § 2933; 1896, No. 44 , § 14; V.S. § 2541; R.L. § 2228. G.S. 55, § 14.

Former § 474, relating to husband's interest in lieu of curtesy, was derived from V.S. 1947, § 3040; 1947, No. 202 , § 3063; P.L. § 2964; G.L. § 3414; 1917, No. 88 ; P.S. § 2934; 1900, No. 39 , § 1; 1896, No. 44 , § 15; V.S. § 2542; R.L. § 2229. G.S. 55, § 15; R.S. 51, § 15; 1824, p. 24; 1823, p. 19; 1821, p. 57; R. 1797, p. 237, § 61.

Former § 475, relating to waiver of provisions of wife's will, was derived from V.S. 1947, § 3041; P.L. § 2965; G.L. § 3415; 1910, No. 100 , §§ 1, 2; P.S. § 2935; V.S. § 2543; 1890, No. 34 , § 1.

Annotations From Former § 461

1. Nature of interest during marriage.

Interest of wife during coverture in husband's property is not a vested interest, but is such as to give her an equitable right of action to protect her against any conveyance thereof, made by him with fraudulent intent to deprive her of such rights therein, as, by statute, would accrue to her at his decease. Dunnett v. Shields, 97 Vt. 419, 123 A. 626 (1924).

2. Vesting of interest.

Widow's right to dower becomes a present vested estate on decease of husband, which does not depend on contingency of dower being assigned or set out. Town of Dummerston v. Town of Newfane, 37 Vt. 9 (1864).

3. Testamentary disposition of interest.

The surviving spouse's right of dower is of such paramount importance that it is regarded as a restraint upon the exercise of another fundamental right - that of testamentary disposition, and it is beyond dispute that any effort to will away such a right must fail. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

Statutory rights of widow are homestead, statutory dower, and at least one-third of deceased husband's personal property and none can lawfully or effectually be willed away from her without her assent. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

4. Contract to devise real estate.

Where divorce decree required husband to make a will leaving his real estate to the minor children of the parties, and at time of his death, husband was remarried but had not yet complied with the provisions of the divorce decree, having made no testamentary disposition whatever of the subject real estate, even if divorce decree was a binding and valid contract to devise real estate, its specific enforcement could not affect the rights of the widow of a party to that contract from her statutory claims to a portion of the estate. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

5. Conveyance to defraud wife.

One cannot hold property which he receives as a mere gratuity, or as heir, if the property was conveyed to him to defeat wife of deceased to her right to dower, but he will be held liable in chancery to account for property so received, and widow will be entitled to one-third part of such property. Jenny v. Jenny, 24 Vt. 324 (1852).

A conveyance by husband, shortly before his death, of all his property, both real and personal, to his children, without any valuable consideration, and with intent to defeat wife of her dower and her share of personal estate, securing at same time to himself possession, use and control of it during his life, is fraudulent against the claims of wife, and will be set aside. Thayer v. Thayer, 14 Vt. 107 (1842).

Where a person seized of lands for consideration of one dollar and for love and affection, executed a deed conveying lands to his brother, and afterwards delivered deed to a third person to be kept until after grantor's death, and then to be delivered to grantee, and grantor retained possession of lands during his life, and after death of grantor deed was delivered to grantee, such deed did not operate to convey lands so as to deprive widow of her dower therein. Ladd v. Ladd, 14 Vt. 185 (1842).

6. Ante-nuptial agreements.

When heirs of deceased husband's estate refused to pay annuity to widow, after it had been paid for several years, which annuity had been provided by an ante-nuptial agreement, and intended to be in lieu of the provisions of law, she was entitled to take a homestead and dower, the same as though no ante-nuptial agreement existed, the court never having decreed a distribution of the estate. Littel v. Dwinell, 57 Vt. 301 (1884).

While L, while insane, was married to S and continued insane till his death, leaving S surviving him, although their marriage could have been avoided by proceedings in supreme court, it was a marriage in fact and S was entitled to a distributive share in estate of L as his widow. Wiser v. Lockwood's Estate, 42 Vt. 720 (1870).

7. Effect of separation.

Though wife separated from husband by reason of family discord such separation was no forfeiture of her right of dower and her share of personal estate, though she had no justifiable cause of separation. Thayer v. Thayer, 14 Vt. 107 (1842).

8. Claims of creditors.

Widow's interest in lieu of dower is excluded from real estate which may be sold for payment of decedent's debts, such interest being preferred over claims of unsecured creditors. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Argument that, because provisions made for widow from her husband's estate have been increased and because the legal rights of married women have been enlarged and their economic and social status improved, dower and its modern substitutes are no longer entitled to preference over unsecured creditors, is proper for consideration of legislature but may not be considered by courts unless statutes governing this matter are ambiguous. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Annotations From Former § 465

1. Generally.

Exclusive means by which dower interest retained by surviving spouse may be barred is explicitly set out in this section. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

2. Construction with other laws.

Language of subdivision (2) of this section, while clearly conferring upon probate court jurisdiction to determine whether bequest in will to his widow was intended to be in lieu of her statutory right to one-third in value of real estate of which he died seized in his own right, is not specific grant of exclusive power and does not preclude court of chancery from construing will under authority contained in section 117 of this title, which was later enactment. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

3. Provisions in will.

Interest of widow in real estate of her husband is not one which is a matter of right but may be barred where husband by his will has made provision for her which, in opinion of probate court, was intended to be in lieu of such interest in such estate and it is only by a decree of probate court that widow would become entitled to this real estate. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

Devise by husband does not extinguish widow's right to homestead and dower, unless it clearly appears that such was the intention of testator. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

Provisions of will wherein specific sum was bequeathed to testator's widow in addition to real estate and household goods, furnishings, and contents of house in certain city, did not show intention on part of testator that bequest should be in lieu of plaintiff's statutory rights as surviving widow. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

4. Ante-nuptial agreements.

This section, providing in what cases widow may be barred of dower, relates to jointures or pecuniary provisions which are to take effect after decease of husband and between which and the provisions made for her by the statute an election may then be made; but it does not apply to a provision made for and received by her, completely, during the life of her husband, under an ante-nuptial contract, perfectly fair and well understood, that it shall be in lieu of every claim in her behalf against his estate. Chaffee v. Chaffee, 70 Vt. 231, 40 A. 247 (1897).

Where widow accepted one yearly installment under ante-nuptial contract, from the executor, after her husband's decease, this of itself was an election to take under the contract. Chaffee v. Chaffee, 70 Vt. 231, 40 A. 247 (1897).

When heirs of deceased husband's estate refused to pay an annuity to a widow, after it had been paid for several years, which annuity had been provided by an ante-nuptial agreement, and intended to be in lieu of the provisions of law, she was entitled to take under statute a homestead and dower, as if no ante-nuptial agreement existed, the court never having decreed a distribution of the estate, and the rights of the widow could be enforced by bill in equity, not only against heirs, but their grantees affected by notice of the widow's claim. Little v. Dwinnell, 57 Vt. 301 (1884).

Where plaintiff did not elect to waive provision made for her by an ante-nuptial agreement, but, although she was induced by the fraud of the only son of intestate, accepted and received the same in full of all claim against the estate and retained it without offering to restore it to the estate, plaintiff was barred of dower and homestead. Hathaway v. Hathaway's Estate, 46 Vt. 234 (1873).

5. Waiver.

Under subdivision (3) of this section, the application for extension of time to file the waiver need not be made within the eight months, but probate court may permit such waiver at any time before the settlement of the estate is closed. In re Estate of Woolley, 96 Vt. 60, 117 A. 370 (1922).

Probate court, on application of widow made nearly 4 1/2 years after will was proved, had authority, in its discretion, to allow a further time in which to waive provisions of will; and decree granting such extension, unappealed from, and decree, also unappealed from, dismissing a petition subsequently brought to set aside the order allowing additional time and to expunge the waiver filed by widow in pursuance thereof from records, were conclusive and not open to attack in an appeal from decree to widow of her distributive share of estate. In re Estate of Woolley, 96 Vt. 60, 117 A. 370 (1922).

Widow's waiver contemplated by this section is of some provision the benefit of which she is to get upon or after her husband's death. Sawyer v. Churchill, 77 Vt. 273, 59 A. 1014 (1905).

6. Insolvent estate.

There is no statutory provision for barring widow's third interest in lieu of dower in her husband's real estate by reason of fact that his estate is insolvent or that it is necessary to use all or some portion of such dower interest to prevent insolvency. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of avails of sale of real estate as her statutory interest therein, notwithstanding that estate was insolvent. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Cited. Mann v. Mann's Estate, 53 Vt. 48 (1880); In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

Annotations From Former § 466

1. Commissioners.

After probate court had appointed commissioners for setting out of homestead and dower, court of chancery would not interfere upon ground that commissioners were appointed without notice, and were unfit persons to act, and that homestead and dower could not be severed without great damage to the remaining premises. Brown v. Brown, 66 Vt. 81, 28 A. 666 (1894).

It was duty of probate court, in his commission to committee to set out widow's dower, particularly to describe all the real estate of which the husband died seized in his own right, and it was duty of committee to view premises and appraise the same. Kendrick v. Harris, 1 Aik. 273 (1826).

An objection to order appointing committee to set off dower could not be taken advantage of upon an appeal from decree accepting the report of such committee. Kendrick v. Harris, 1 Aik. 273 (1826).

Annotations From Former § 472

1. Construction.

This section does not mean that claims of creditors are superior to widow's interest in lieu of dower, but only that both widow and creditors have interests in decedent's real estate and are authorized to adjust their respective interests by agreement, subject to approval of probate court. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Annotations From Former § 474

1. Election to take under will.

Statutory curtesy is barred when the widower accepts the provisions made for him by last will and testament of his wife. In re Will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

2. Sale of real estate.

The one-third interest to which husband is entitled under this section in his deceased wife's estate whereof they were seized in her right in fee-simple, having been given in lieu of curtesy, can be sold under license from probate court for payment of her debts and expenses of administering her estate, as curtesy could have been. In re Bidwood's Estate, 86 Vt. 295, 85 A. 6 (1912).

Right to occupy as tenant by the curtesy was subject to be defeated by necessity of a sale of real estate to pay wife's debts. Bennett v. Camp, 54 Vt. 36 (1882).

Annotations From Former § 475

1. Construction.

Word "as" in section means "in the same manner in which." In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

2. Procedure.

When a wife dies testate leaving no issue, her surviving husband can waive the provisions of her will in his favor only by seasonably and in writing notifying the probate court of his intention to do so. In re Baker's Estate, 81 Vt. 505, 71 A. 190 (1908).

There was no valid waiver by a husband of the provisions contained in his wife's will when he, by his attorney, notified the probate court of his intention to waive said provisions, and later signed a formal written waiver thereof and sent it to his attorney to be filed in probate court; but the attorney through mistake failed so to file it and mislaid or lost it. In re Baker's Estate, 81 Vt. 505, 71 A. 190 (1908).

Election may be by matter in pais as well as by matter of record, but it can be only by plain and unequivocal acts, with full knowledge of all the circumstances, and of the party's rights, and with the intent to elect. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

3. Extension of time.

It was within discretion of probate court to grant extension of time to waive provisions of will. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

4. Waiver after probate of will.

Since section 1 of this title gives every married woman of age and sound mind power to dispose of her real and personal estate, regardless of her husband's consent, neither validity of her will nor its probate depends on such consent being shown, and, hence, surviving husband cannot by probate of his wife's will be estopped subsequently to elect to waive its provisions and take under section 551 of this title. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

Right of surviving husband to waive provisions of wife's will was not affected by either his failure to object to or appeal from probate thereof; and any question as to whether he shall take under will, or under section 551 of this title in consequence of his waiver, was involved in decree of distribution and should be determined in connection therewith. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

CHAPTER 45. DESCENT, OMITTED ISSUE AND LAPSED LEGACIES

Sec.

§§ 551-559. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 551, relating to general rules of descent, was derived from 1955, No. 39 ; V.S. 1947, § 3042; 1947, No. 202 , § 3065. P.L. § 2966; 1929, No. 46 , § 2; 1923, No. 55 , § 1. 1919, No. 86 , § 1; G.L. § 3416; 1912, No. 105 ; 1908, No. 75 ; P.S. § 2936; 1896, No. 44 , § 16; 1896, No. 45 , § 1; V.S. § 2544; 1894, No. 56 ; 1892, No. 49 ; 1890, No. 34 ; 1888, No. 77 ; R.L. § 2230; 1870, No. 30 ; 1870, No. 31 , § 1; G.S. 49, § 5; G.S. 55, § 6; G.S. 56, §§ 1, 18; 1850, No. 15 ; R.S. 45, § 5; R.S. 51, §§ 6, 7. R.S. 52, §§ 1, 14. 1829, No. 9 ; 1826, No. 19 ; 1824, p. 24; 1821, pp. 39, 57; R. 1797, p. 212, § 8; R. 1797, p. 223, § 27; R. 1797, p. 224, §§ 29, 30; R. 1787, p. 54 and amended by 1969, No. 255 (Adj. Sess.), § 1 and 1971, No. 165 (Adj. Sess.), § 1.

Former § 552, relating to degrees, how computed; kindred of half-blood, was derived from V.S. 1947, § 3043; P.L. § 2967; G.L. § 3417; P.S. § 2937; V.S. § 2545; R.L. § 2231; G.S. 56, § 2; R.S. 52, § 2.

Former § 553, relating to illegitimate children; inheritance by and from, was derived from V.S. 1947, § 3044; P.L. § 2968; 1933, No. 157 , § 2755; G.L. § 3418; P.S. § 2938; V.S. § 2547; R.L. § 2232; 1867, No. 38 ; G.S. 56, § 4; R.S. 52, § 4; 1821, p. 58; R. 1797, p. 223, § 28 and amended by 1967, No. 350 (Adj. Sess.), § 1 and 1983, No. 231 (Adj. Sess.), § 1a.

Former § 554, relating to children legitimatized by parents' marriage, was derived from V.S. 1947, § 3045; P.L. § 2969; G.L. § 3419; P.S. § 2939; V.S. § 2548; R.L. § 2233; G.S. 56, § 5; R.S. 52, § 5; 1821, p. 58; R. 1797, p. 223, § 28.

Former § 555, relating to share of after-born child, was derived from V.S. 1947, § 3061; 1947, No. 202 , § 3084; P.L. § 2976; G.L. § 3426; P.S. § 2946; V.S. § 2555; R.L. § 2241; G.S. 49, § 25; R.S. 45, § 25; 1821, p. 38; R. 1797, p. 211, § 6.

Former § 556, relating to share of child or issue of child omitted from will, was derived from V.S. 1947, § 3062; P.L. § 2977; G.L. § 3427; P.S. § 2947; V.S. § 2556; R.L. § 2242; G.S. 49, § 26; R.S. 45, § 26.

Former § 557, relating to omitted or after-born child, from what part of estate share taken, was derived from V.S. 1947, § 3063; P.L. § 2978; G.L. § 3428; P.S. § 2848; V.S. § 2557; R.L. § 2243; G.S. 49, § 27; R.S. 45, § 27; 1821, p. 39; R. 1797, p. 211, § 6.

Former § 558, relating to devisee dying before testator; issue to take, was derived from V.S. 1947, § 3064; 1947, No. 202 , § 3087; P.L. § 2979; G.L. § 3429; P.S. § 2949; V.S. § 2558; R.L. § 2244; G.S. 49, § 28; R.S. 45, § 28.

Former § 559, relating to person absent and unheard of; share of, was derived from V.S. 1947, § 3065; P.L. § 2980; G.L. § 3430; P.S. § 2950; R. 1906, § 2833; V.S. § 2559; R.L. § 2245. 1876, No. 82 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 33.

Annotations From Former § 551

1. Definitions.

"Descent" involves the devolution or taking by succession of intestate property by operation of law. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

2. Right to inherit.

Right to succeed to the property of an ancestor is not a natural right, but a gift of the law. In re Martin's Estate, 96 Vt. 455, 120 A. 862 (1923).

3. Real and personal estate.

When the wife dies without issue and without representatives of issue, the husband takes the whole of her estate up to the sum mentioned in this section, and one-half of the remainder, though consisting wholly of real estate or wholly of personal estate, or partly of one and partly of the other. Harrington v. Harrington's Estate, 53 Vt. 649 (1881).

4. Adopted children and their representatives.

In subdivision (1) of this section, providing that an intestate's estate shall descend to his "children," "or the legal representatives of deceased children," and in subdivision (2), providing that if the intestate was married, "and leaves no issue," surviving husband or wife shall take as designated, words "children" and "issue" are not limited to children born in lawful wedlock, but include adopted children, and word "issue" includes the legal representatives of such deceased children. In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

Where an intestate left a widow, but no issue of his body, and before his marriage with her he adopted claimant's mother, who predeceased him, leaving claimant, who was her legitimate child, surviving her, and intestate's widow, at time of their intermarriage, knew that he had adopted claimant's mother, but neither assented nor objected thereto, claimant was entitled by representation to share in intestate's estate, not limited to the heirs of his body, to same extent as if claimant were intestate's real grandson, it being a case where an intestate left "legal representatives of deceased children," within the meaning of subdivision (1) of this section. In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

5. Grandchildren.

A bequest "per stirpes and not per capita" serves to rebut statutory "per capita" distribution at the level of grandchildren. In re Estate of White, 127 Vt. 28, 238 A.2d 791 (1968).

Under subdivision (1) of this section, grandchildren who alone survive the ancestor take equally and not by representation, the clause providing for representation applying only when inequality of relationship exists. In re Martin's Estate, 96 Vt. 455, 120 A. 862 (1923).

6. Waiver of will by surviving spouse.

The share of an estate which the widow elects to take by her waiver of the will is the only portion of the estate not "devised or bequeathed" upon which this section can operate. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Although the rights of the widow are favored in the law, they do not allow her waiver to reach beyond the provisions of the will for her benefit and destroy otherwise valid testamentary dispositions insofar as the assets of the estate are sufficient to fulfill her statutory rights and the distributions under the will. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Where a will provides for a trust estate for life for the widow, followed by a remainder over, the widow, by waiving the provisions of the will, accelerates the estate in remainder into present enjoyment. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of avails of sale of real estate as her statutory interest therein, notwithstanding that estate was insolvent. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

7. Curtesy.

Statutory curtesy may be barred under this section where there is no issue and the widower either elects to take one-third of the deceased wife's real estate or waives the provisions of her will and takes the sum specified in subdivision (2) and one-half the remainder. In re will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

8. Brothers and sisters and their representatives.

Where intestate died leaving no kindred in the direct line, either ascending or descending, but left a sister, some nephews and nieces and claimant grandchildren of a sister who deceased during his lifetime and whose mother also deceased during his lifetime, such grandchildren of a sister take by representation through their mother and maternal grandmother the share the mother would have received had she survived him. Gaines v. Estate of Strong, 40 Vt. 354 (1867).

If intestate leaves no widow, issue, father, mother, brother, or sister living, but leaves surviving him children of his deceased brothers and sisters, and also grandchildren of deceased brothers and sisters, whose parents are also dead, his estate must be divided equally among all the children, who are living, of his deceased brothers and sisters, to the exclusion of the grandchildren, the case coming within subdivision (5) of this section. Hatch v. Hatch, 21 Vt. 450 (1849).

9. Cousins and their representatives.

Under subdivisions (4) and (5) of this section, children of deceased first cousins are precluded from sharing with surviving first cousins in an intestate estate. In re Estate of Valiquette, 122 Vt. 362, 173 A.2d 839 (1961).

*10. Killing decedent as bar to inheritance.

* Constructive trust.

A spouse, heir or legatee, who inherits legal title to property from the estate of a decedent whom such person has voluntarily slain, is chargeable as a constructive trustee of such property for the benefit of the victim's other heirs or next of kin. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*11. Classification of crime.

A constructive trust will be imposed with respect to property inherited by a slayer from the estate of his victim if the killing was intentional, whether characterized as murder or manslaughter. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*12. Exceptions.

A slayer who inherits from his victim is not chargeable as a constructive trustee if the slayer was insane at the time or had a vested interest in the property. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

A constructive trust will not be imposed with respect to property inherited by a slayer from the estate of his victim if the killing was involuntary. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*13. Proof.

Fact that the slayer has been convicted of a voluntary killing in a criminal case does not dispense with the necessity of proving that the killing was voluntary in an equitable proceeding to charge the slayer as constructive trustee with respect to property inherited by him from his victim. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

Cited. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908); Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988); In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989); In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342 (1994).

Annotations From Former § 552

Cited. Hatch v. Hatch, 21 Vt. 450 (1849); In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342 (1994).

Annotations From Former § 553

1. Inheritance as though legitimate.

Word "through" is an important addition to language of earlier statutes, and, taken with words "as if born in lawful wedlock," demonstrates a legislative intent that an illegitimate child should inherit through the mother as though legitimate. 1954-56 Op. Atty. Gen. 341.

2. Inheritance between illegitimate children.

One illegitimate child can inherit to another illegitimate child of the same mother. Town of Burlington v. Fosby, 6 Vt. 83 (1834).

3. Inheritance between legitimate and illegitimate children.

Illegitimate children do not inherit from legitimate children of same mother. Bacon v. McBride, 32 Vt. 585 (1860).

4. Limitations on parentage action .

The effective window for the filing of a parentage action and motion for genetic testing by a nonmarital child is 21 years from the child's birth. In re Estate of Murcury, 177 Vt. 606, 868 A.2d 680 (mem.) (December 13, 2004).

Annotations From Former § 554

1. Consequences of legitimation.

If parents of an illegitimate child intermarry, and recognize and treat such child as their own, it will render child legitimate, as if born in lawful wedlock, and child will take settlement of father, as one of the legal consequences resulting from such act of legitimation. Town of Rockingham v. Town of Mount Holly, 26 Vt. 653 (1854).

Annotations From Former § 556

1. Purpose.

Purpose of this section is to guard against inadvertent and unintentional omission of children and their issue from the will of a parent or grandparent. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

2. Effect on will.

Child claiming rights granted by this section does not seek to defeat or amend will itself or to impeach it in any way, but to have established a right under statute unaffected by will. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

3. Burden of proof.

Child claiming rights granted by this section has burden of proving that he was left out of will and that omission was result of accident or mistake. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

4. Evidence.

Relevant parol evidence is admissible on issue as to whether omission of child from will occurred through accident or mistake. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

Annotations From Former § 558

1. Devisee or legatee dying without issue.

Where son deceased before testator, leaving no children, legacy to him lapsed. Colburn v. Hadley, 46 Vt. 71 (1873).

2. Surviving issue.

Where will provided that if sister survived testator the residue was devised to the sister and to brother in equal shares, but if sister did not survive testator then the whole residue was devised to the brother, with the recommendation, but not a direction, that in such case brother divide at least half of the devise among his then living children and the descendants of his deceased children, and sister predeceased testator leaving no surviving issue and brother predeceased testator leaving children and grandchildren of a deceased child, the residue was improperly treated as passing by intestacy, and supreme court would order that it be distributed under this section. In re Estate of Carr, 139 Vt. 111, 422 A.2d 943 (1980).

3. Disposition required by will.

Anti-lapse provision of this section did not apply where residue was left to named brothers and sisters "share and share alike," the share of any brother or sister predeceasing testator to be "divided equally among the survivors thereof," for a different disposition, to the surviving brothers and sisters, was thereby made. In re Miner Estate, 129 Vt. 484, 282 A.2d 827 (1971).

Annotations From Former § 559

1. Liability of assignees.

Where probate court distributed estate, one-half to one brother, and the other half to the defendants, the assignees of the other brother, defendants are liable under section, since it provides that if absent person proves to be alive, such person may recover from anyone receiving under order of the court. Lenehan v. Spaulding, 57 Vt. 115 (1884).

2. Evidence.

Question being whether a son who disappeared and was never subsequently heard from, died before his father, testimony of living members of family as to general reputation in family as to son's death, not predicated upon declarations of any deceased member of family, was inadmissible. In re Hurlburt's Estate, 68 Vt. 366, 35 A. 77 (1895).

CHAPTER 47. UNIFORM SIMULTANEOUS DEATH ACT

Sec.

History

Short title. V.S. 1947, § 3053, derived from 1941, No. 41 , § 8, provided that this chapter may be cited as the Uniform Simultaneous Death Act.

Severability of enactment. V.S. 1947, § 3054, derived from 1941, No. 41 , § 10, contained a separability provision applicable to this chapter.

§ 621. No sufficient evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority of death and there is not sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.

History

Source. V.S. 1947, § 3046. 1941, No. 41 , § 1.

§ 622. Beneficiaries.

Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is not sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

History

Source. V.S. 1947, § 3047. 1941, No. 41 , § 2.

§ 623. Joint tenants.

Where there is not sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

History

Source. V.S. 1947, § 3048. 1941, No. 41 , § 3.

§ 624. Insurance policy.

Where the insured and the beneficiary in a policy of life or accident insurance have died and there is not sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

History

Source. V.S. 1947, § 3049. 1941, No. 41 , § 4.

§ 625. Construction.

This chapter shall not apply to the distribution of the property of a person who has died before March 21, 1941.

History

Source. V.S. 1947, § 3050. 1941, No. 41 , § 5.

§ 626. Application where provision made for simultaneous death.

This chapter shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this chapter.

History

Source. V.S. 1947, § 3051. 1941, No. 41 , § 6.

§ 627. Interpretation to effectuate purpose.

This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states that enact it.

History

Source. V.S. 1947, § 3052. 1941, No. 41 , § 7.

CHAPTER 49. ESCHEATS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 681. Persons dying testate or intestate without heirs or known legatees.

When a person dies testate or intestate, seised of real or personal property in this State, leaving no heir nor person entitled to the same, the selectboard members of the town where the deceased last resided, if an inhabitant of the State, or of the town in which estate lies, if the absent person resided out of the State, may file a petition, on behalf of the town, with the Probate Division of the Superior Court for a hearing in accordance with the Rules of Probate Procedure.

Amended 1959, No. 38 , § 1, eff. March 12, 1959; 1985, No. 144 (Adj. Sess.), § 34; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3055. P.L. § 2970. G.L. § 3420. P.S. § 2940. V.S. § 2549. R.L. § 2235. G.S. 58, § 1. R.S. 54, § 1. 1821, p. 61. R. 1797, p. 243, § 73.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "procedure" following "legatees" in the section heading and deleted "he was" preceding "an inhabitant" and "he had" preceding "estate lies, if" and substituted "the absent person" for "he" thereafter and "for a hearing in accordance with the rules of probate procedure" for "of the same district for an inquisition in the premises" following "court" and made other minor stylistic changes in the text of the section.

Amendments--1959. Inserted "testate or" preceding "intestate without heirs" and "or known legatees" thereafter in the section heading and inserted "testate or" preceding "intestate" in the first sentence.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

Hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 682. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 682, relating to notice, was derived from V.S. 1947, § 3056; P.L. § 2971; G.L. § 3421; P.S. § 2941; V.S. § 2550; R.L. § 2236; G.S. 58, § 2; R.S. 54, § 2; 1821, p. 61; R. 1797, p. 243, § 73.

§ 683. Escheat, proceeds from sale.

If sufficient cause is not shown to the contrary, at the time appointed for that purpose, the court shall order and decree that the estate of the deceased in the State, after the payment of just debts and charges, shall escheat. The court shall assign the personal estate to the town where the deceased was last an inhabitant in the State and the real estate to the towns in which the same is situated. If he or she were never an inhabitant of the State, the whole estate shall be assigned to the towns where the same is located. The estate shall be for the use of schools in the towns respectively and shall be managed and disposed of like other property appropriated to the use of the town school districts. Any property decreed to a town by virtue of this chapter or subsequently conveyed to an incorporated school district within the town for the use of its schools may be sold without restriction, provided the proceeds shall be expended for the use of the schools of the town.

Amended 2017, No. 195 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 3057. 1945, No. 36 , § 1. P.L. § 2972. 1933, No. 157 , § 2759. G.L. § 3422. P.S. § 2942. V.S. § 2551. R.L. § 2237. G.S. 58, § 3. R.S. 54, § 3. 1821, p. 61. R. 1797, p. 223, § 27. R. 1797, p. 243, § 73.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section.

ANNOTATIONS

1. Use of funds.

Escheated funds should be turned over to the selectmen of a town and managed as provided in statutes governing real and personal estate appropriated to the use of the schools. 1940-42 Op. Atty. Gen. 149.

Cited. In re Estate of Gillin, 172 Vt. 546, 773 A.2d 270 (2001).

§ 684. Rights of heir subsequently appearing.

If a devisee, legatee, heir, widow, or other person, entitled to some portion or all of an estate, appears within 17 years from the date of the decree and files a claim with the Probate Division of the Superior Court that made the decree, and establishes the claim to the estate, he or she shall have possession of the same to the extent of the claim, or, if sold, the town shall be accountable to him or her for the avails, after deducting reasonable charges for the care of the estate. If the claim is not made within the time mentioned, it shall be barred.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 3058. P.L. § 2973. G.L. § 3423. P.S. § 2943. V.S. § 2552. R.L. § 2238. G.S. 58, § 4. R.S. 54, § 4. 1821, p. 63. R. 1797, p. 243, §§ 73, 74.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court"' for "probate court."

ANNOTATIONS

1. Property taxes .

Where heirs appeared and timely filed a claim to property taken by escheat, town could not retroactively charge taxes on the property and recoup its expenses. In re Estate of Gillin, 172 Vt. 546, 773 A.2d 270 (2001).

PART 3 Administration and Settlement of Decedents' Estates

CHAPTER 61. EXECUTORS AND ADMINISTRATORS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SPECIAL ADMINISTRATORS

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 901. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 901, relating to definition of executor, was derived from V.S. 1947, § 2846; P.L. § 2773; G.L. § 3229; P.S. § 2756; V.S. § 2370; R.L. § 2062; G.S. 49, § 38; R.S. 45, § 38.

§ 902. Will allowed; letters to executor.

When a will has been allowed, the Probate Division of the Superior Court shall issue letters of administration to the person named executor if the person accepts appointment and gives any required bond.

Amended 1985, No. 144 (Adj. Sess.), § 35; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2847. P.L. § 2774. G.L. § 3230. P.S. § 2757. V.S. § 2371. R.L. § 2063. G.S. 50, § 1. R.S. 46, § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "proved" following "Will" in the section heading and deleted "proved and" preceding "allowed" and substituted "the person" for "he" preceding "accepts" in the text of the section.

Cross References

Cross references. Amount and conditions of bond, see § 906 of this title.

Appointment of special administrator, see §§ 961 and 962 of this title.

Discharge of executor, see § 2107 of this title.

Minor named as executor in will, see § 910 of this title.

Probate bonds, generally, see § 2101 et seq. of this title.

ANNOTATIONS

Cited. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 903. Administration; to whom granted.

If an executor is not named in the will, or if a person dies intestate, appointments to administer the estate may be made in the following manner:

  1. To the surviving spouse or next of kin, or both, or the person nominated by the surviving spouse or next of kin.
  2. If the surviving spouse or next of kin or the person nominated by them is unsuitable, or if the surviving spouse or the next of kin does not within a reasonable period of time after the death of the person apply for letters of administration or nominate another person to whom letters of administration may be granted, the court may grant letters of administration to one or more of the principal creditors, if competent and willing to serve.
  3. If there is not a creditor who is competent and willing to serve, letters of administration may be issued to another person appointed by the Probate Division of the Superior Court in its discretion.
  4. If the appointment is to enable a quiet title action or another action to clear title to lands, the court may appoint a suitable person as the administrator for that purpose upon application of the reputed owner of the land formerly owned by the decedent.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1953, No. 252 , § 1. V.S. 1947, § 2848. P.L. § 2775. 1919, No. 83 . G.L. § 3231. P.S. § 2758. V.S. § 2372. R.L. § 2064. G.S. 51, § 3. R.S. 47, § 3. 1821, p. 40. R. 1797, p. 220, § 25. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (3): Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Appointment of special administrator, see §§ 961 and 962 of this title.

Discharge of administrator, see § 2107 of this title.

Revocation of letters of administration when will discovered, see §§ 924-926 of this title.

ANNOTATIONS

Analysis

1. Conflict of interest.

Beneficiaries of an estate are entitled to have a person appointed administrator who will administer estate fairly and impartially; no person should be so appointed whose personal interests conflict with and are adverse to those of estate. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Relation back of appointment.

Appointment of administratrix relates back to death of intestate. Firestone Tire & Rubber Co. v. Hart, 104 Vt. 100, 158 A. 90 (1932).

3. Corporations.

Corporation organized under the general laws may not properly act as executor or administrator. 1946-48 Op. Atty. Gen. 267.

4. Next of kin.

"Next of kin" carries the same meaning in the statute regarding administration of an estate as it does in the wrongful death statute and in the laws of descent. Thus, because under the laws of descent, a decedent's minor child would inherit everything, she was the next of kin for purposes of the administration statute. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

It is the rule at common law that the guardian of an infant who would otherwise be entitled to administration of an estate was entitled to administer the estate as a matter of right; the common law rule addresses an issue that the statute dealing with administration of estates simply fails to address, and the rule is not inconsistent with the statute. Therefore, the common law rule applies and can be used to interpret the statute. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

5. Particular cases.

Unmarried mother of a decedent's four-year-old child was properly appointed his administrator. The child was the decedent's "next of kin" under the administration statute, and under the common law, the mother, the child's guardian, stepped into the child's shoes and had the right to be appointed administrator provided that she was suitable; the mother was suitable, as her interests were directly aligned with the interests of the estate in that both sought to maximize the proceeds that could be obtained for the child in any ensuing wrongful death action. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

Cited. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 904. Nonresident executor or administrator.

  1. In all cases where the principal administration is in this State, the Probate Division of the Superior Court shall appoint an executor or administrator who is not domiciled in this State only at the discretion of the court.
  2. Any nonresident estate fiduciary shall forthwith designate in writing a resident of this State who accepts appointment as the resident agent of the nonresident estate fiduciary and agrees to accept service of legal process and other communications on behalf of the executor or administrator. The appointment and acceptance shall be filed with the court. Service of legal process against the nonresident executor or administrator may be accomplished by serving the resident agent.

    Amended 1959, No. 262 , § 30, eff. June 11, 1959; 1985, No. 144 (Adj. Sess.), § 36; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1953, No. 252 , § 2. V.S. 1947, § 2849. P.L. § 2776. G.L. § 3232. 1912, No. 101 . 1910, No. 99 . 1908, No. 71 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "his" preceding "appointment", substituted "motion" for "application" following "guardian, on" and made other minor stylistic changes.

Subsec. (b): Substituted "state" for "probate district" preceding "from which letters" in the first sentence, deleted "probate" preceding "court" and "in the district in which it is made" thereafter in the second sentence.

Amendments--1959. Subsec. (a): Substituted "or" for "of" preceding "a guardian".

Cross References

Cross references. Foreign fiduciaries and sureties generally, see Rule 68, V.R.P.P.

Service generally, see Rules 4 and 5, V.R.P.P.

ANNOTATIONS

Analysis

1. Nonresidents.

Nonresident of this state may not hold office of executor of will as a matter of right but only within discretion of the probate court. In re Estate of Daniels, 116 Vt. 190, 71 A.2d 586 (1950).

2. Guardian of minor.

Neither the 1797 statute nor the current statute prescribing requirements for administrators says anything about the common law rule that the guardian of an infant who would otherwise be entitled to administration of an estate was entitled to administer the estate as a matter of right; rather, these statutes reiterate only the undisputed point that the legislature does not approve of a minor personally serving as administrator. That legislative intent is not inconsistent with allowing a minor's guardian - someone who is of lawful age - to stand in the shoes of the minor and become administrator, and the common law rule therefore remains in place. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

§ 905. Appeal to the Civil Division of the Superior Court.

If any person appeals to the Civil Division of the Superior Court an order appointing an executor or administrator and the appeal is sustained, the Civil Division of the Superior Court shall appoint another suitable person as executor or administrator, and certify the judgment and subsequent appointment to the Probate Division of the Superior Court. The Probate Division shall set bond and, after the required bond is filed by the executor or administrator, grant letters of administration.

Amended 1985, No. 144 (Adj. Sess.), § 37; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2850, P.L. § 2777. G.L. § 3233. P.S. § 2759. V.S. § 2373. R.L. § 2065. 1876, No. 110 .

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the section heading and preceding "court shall" in the first sentence, substituted "the probate" for "such" preceding "court" and deleted "to him as though he had been appointed by such court" following "administration" in the second sentence, and made other minor stylistic changes throughout the section.

ANNOTATIONS

Analysis

1. Remand from supreme court.

When an appeal to county court from an order appointing an administrator has passed to supreme court for decision on exceptions, remand is properly made to probate court rather than to county court. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Appeal from order of removal.

Executor has the right of appeal from order of probate court removing him and appointing an administrator in his place. In re Bellows' Estate, 60 Vt. 224, 14 A. 697 (1887).

§ 906. Bond; amount, conditions.

An executor or administrator shall give a bond to secure the executor's or administrator's performance of the executor's or administrator's duties. The Probate Division of the Superior Court shall set the amount of the bond and may order that the bond have sureties. The bond shall be for the security and benefit of all interested persons, except where a bond is to be taken to the adverse party, and shall be filed before the court issues letters of administration. The court shall set the conditions of any bond, which shall include the following:

  1. to make and return an inventory to the Probate Division of the Superior Court within 60 days as required by law and the rules of the court;
  2. to administer according to law and the decedent's will, if any, all property comprising the decedent's estate, whether in the possession of the executor or administrator or others for the benefit of the executor or administrator, and discharge all debts, legacies, and charges;
  3. to render an account of administration to the Probate Division within one year and at any other time when required by the court;
  4. to pay to the State of Vermont all inheritance and transfer taxes that the person appointed is required to pay by the provisions of 32 V.S.A. chapters 181 and 183 and to perform all other duties required by those chapters; and
  5. to perform all orders and decrees of the Probate Division.

    Amended 1985, No. 144 (Adj. Sess.), § 38; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2851. P.L. § 2778. 1925, No. 50 , § 1. 1923, No. 53 , § 2. 1919, No. 88 , § 2. G.L. § 3234. P.S. § 2760. V.S. § 2374. R.L. § 2066. G.S. 50, §§ 2, 7. G.S. 51, § 4. R.S. 46, §§ 2, 7. 1821, p. 41. R. 1797, p. 215, § 16. R. 1797, p. 221, § 26. R. 1787, p. 56.

Reference in text. Chapters 181 and 183 of Title 32, referred to in subdiv. (4), were omitted from Vermont Statutes Annotated in the 1981 Replacement Edition of Titles 32 and 33. Superseding provisions are now set out in § 7401 et seq. of Title 32.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in the introductory paragraph and in subdivs. (1)-(3) and (5).

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Foreign surety, see Rule 68, Vermont Rules of Probate Procedure.

Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

Analysis

1. Duration of liability.

Surety on bond of special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by § 2105 of this title, and so, where a special administrator continued to act as such after the final establishment of will which named him executor, surety on his official bond remained liable. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

2. Executor or administrator indebted to decedent.

When executor is insolvent at time of appointment and is indebted to his testator, his failure to pay his debt is not a breach of trust for which a surety on his probate bond is liable; and, if in such case the executor in his accounting treats his own debt as available assets and probate court decrees distribution accordingly, surety is not bound by decree; and a court of equity has jurisdiction and will grant relief. Lyon v. Osgood, 58 Vt. 707, 7 A. 5 (1886).

When an executor or administrator is indebted to testator or intestate, he must charge himself with amount due from him, if solvent, or it will be a breach of his bond. Probate Court v. Merriam, 8 Vt. 234 (1836).

3. Administrator de bonis non.

If an administrator de bonis non neglects to make an inventory of all the estate of the deceased, real and personal, which remained unadministered by the former administrator, and return the same to the court of probate within time limited by the court, it is a breach of condition of his bond. Wilson v. Keeler, 2 D. Chip. 16 (1824).

4. Account of administration.

Settlement of an executor's or administrator's account, before court of probate, unappealed from, is conclusive upon every subject adjudicated upon. Probate Court v. Merriam, 8 Vt. 234 (1836).

Settlement before probate court does not preclude the heirs, legatees or creditors from proving that other property came into hands of administrator or executor, of which no account was rendered. Probate Court v. Merriam, 8 Vt. 234 (1836).

The condition in an administrator's bond to judge of probate that administrator shall make, or cause to be made, a true and just account of his administration, is not broken by neglect in administrator to pay debts and make a distribution of estate of deceased. Judge of Probate v. Pratt, 1 D. Chip. 233 (1814).

5. Foreign property.

Executor who records a foreign will, in a suit upon his bond given upon such recording, is not holden for effects received in the country where testator had his domicile and died. Probate Court v. Matthews, 6 Vt. 269 (1834).

6. Fraudulent conveyances.

Where insolvent executrix of insolvent estate sold real estate belonging to the estate, without license of probate court and in fraud of creditors, fact that creditors of estate might have an accounting and recover on her bond would not preclude them from maintaining a suit in equity to set aside deed, for remedy on bond was merely secondary and cumulative. Wetmore & Morse Granite Co. v. Bertoli, 87 Vt. 257, 88 A. 898 (1913).

Cited. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 907. Repealed. 2017, No. 195 (Adj. Sess.), § 5.

History

Former § 907. Former § 907, relating to residuary legatee as executor, bond; bond provision in will; further bond, was derived from V.S. 1947, § 2852; P.L. § 2779; G.L. § 3235; P.S. § 2761; 1896, No. 41 , § 1; V.S. § 2375; R.L. § 2067; 1876, No. 85 ; G.S. 50, § 3; R.S. 46, § 3; R. 1797, p. 215, § 16 and amended by 1985, No. 144 (Adj. Sess.), § 39; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 907

1. Power of court to order bond.

Subsec. (b) of this section empowers the probate court to demand a bond even though the testator has placed complete faith in his or her executor by not requiring a bond, but the amount of the bond must be restricted to an amount sufficient to protect creditors of the estate. Estate of Waters, 148 Vt. 160, 530 A.2d 565 (1987).

When one is both executor and trustee, and by will is not required to execute a bond, probate court, if deemed proper from a subsequent change of the executor's circumstances, can order him to give a bond, and such order is not appealable to county court. Felton v. Sowles, 57 Vt. 382 (1885).

§ 908. Bonds of joint administrators and executors.

When two or more persons are appointed as executors or administrators, the Probate Division of the Superior Court may take a separate bond from each, with or without sureties, or a joint bond with or without sureties from any or all.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2853. P.L. § 2780. G.L. § 3236. P.S. § 2762. V.S. § 2376. R.L. § 2068. G.S. 50, § 13. G.S. 51, § 19. R.S. 46, § 13. R.S. 47, § 19.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 909. Executor refusing trust or not giving bond.

A person named as an executor in a will who refuses to accept appointment or neglects for 20 days to give a bond shall not intermeddle or act as executor. If the person refuses to accept or neglects to give a bond, the Probate Division of the Superior Court may grant letters of administration to any other named executor who is capable and willing to accept the appointment and gives bond. If the other named executors fail to accept the appointment or give a bond, the court shall grant letters of administration with the will annexed to one or more suitable persons who would have qualified to be appointed as administrator had the testator died intestate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2854. P.L. § 2781. G.L. § 3237. P.S. § 2763. V.S. § 2377. R.L. § 2069. G.S. 50, §§ 4, 5. R.S. 46, §§ 4, 5. 1821, pp. 40, 42. R. 1797, p. 214, §§ 15, 16. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Persons to whom administration granted, see § 903 of this title.

ANNOTATIONS

1. Failure to file bond.

Probate court may vacate appointment of executor for failure to file bond required by this section. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 910. When executor is a minor.

When a person named as executor in a will is under age at the time of proving the will, issuance of letters of administration may be granted to another executor named in the will, who accepts appointment and gives the required bond, or to another suitable person if he or she fails to accept appointment or to post bond. A minor who attains the age of legal majority during the estate administration shall not displace the incumbent executor or administrator, but if a vacancy occurs during administration, the former minor may apply to the court for appointment as successor executor or administrator.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2855. P.L. § 2782. 1933, No. 157 , § 2569. G.L. § 3238. P.S. § 2764. V.S. § 2378. R.L. § 2070. G.S. 50, § 6. R.S. 46, § 6. 1821, p. 40. R. 1797, p. 215, § 16.

Amendments--2017 (Adj. Sess.). Section amended generally.

§§ 911, 912. Repealed. 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2856. P.L. § 2783. G.L. § 3239. P.S. § 2765. V.S. § 2379. R.L. § 2071. G.S. 50, § 12. R.S. 46, § 12. 1821, p. 44. R. 1797, p. 216, § 17.

Former §§ 911, 912. Former § 911, relating to executor of executor not to administer first estate, was derived from V.S. 1947, § 2856; P.L. § 2783; G.L. § 3239; P.S. § 2765; V.S. § 2379; R.L. § 2071; G.S. 50, § 12; R.S. 46, § 12; 1821, p. 44; R. 1797, p. 216, § 17.

Former § 912, relating to married women, was derived from V.S. 1947, § 2862; P.L. § 2789; G.L. § 3245; P.S. § 2771; V.S. § 2385; 1894, No. 63 ; 1894, No. 162 , § 2324; R.L. § 2075; G.S. 50, § 8; G.S. 51, § 13; R.S. 46, § 8; R.S. 47, § 13; 1821, p. 44; 1817, p. 92; R. 1797, p. 216, § 17.

§ 913. Death or removal of executor or administrator.

When an executor or administrator dies, resigns, is removed or the executor's or administrator's authority is otherwise extinguished, any remaining executor or administrator may complete the administration unless otherwise provided by the will. If there is no other executor or administrator then serving, the court may grant letters of administration to another suitable person. The executor or administrator of an executor or administrator shall not administer the estate of the first decedent.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2857. P.L. § 2784. G.L. § 3240. P.S. § 2766. V.S. § 2380. R.L. § 2072. G.S. 50, § 10. G.S. 51, §§ 11, 14. 1852, No. 20 , § 2. R.S. 46, § 10. R.S. 47, §§ 11, 14. 1821, pp. 43, 44. 1816, p. 140. R. 1797, p. 216, § 17. R. 1797, p. 227, §§ 37, 39, 40. 1791, p. 4.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Termination of appointment, see § 917a of this title.

ANNOTATIONS

1. Appointment of new administrator.

This section confers discretionary power upon the court in determining whether a person is suitable for appointment as an administrator. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

The question of whether a person is suitable for appointment as administrator d.b.n., c.t.a. must be determined in light of the facts and circumstances bearing upon his suitableness for appointment in respect to the particular estate. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

The fact that a person has been appointed special administrator of an estate has no bearing on the question of whether such appointee is a suitable person for appointment as administrator d.b.n., c.t.a. under this section. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

§ 914. Power of new administrator.

An administrator appointed in the place of a former executor or administrator shall have the same authority in settling the estate as the former executor or administrator, including the authority to prosecute or defend actions commenced by or against the former executor or administrator, and the new administrator may revive actions and have execution on judgments recovered in the name of the former executor or administrator on behalf of the estate.

Amended 1971, No. 185 (Adj. Sess.), § 171, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2858. P.L. § 2785. G.L. § 3241. P.S. § 2767. V.S. § 2381. R.L. § 2073. G.S. 51, § 15. R.S. 47, § 15. 1821, p. 53. R. 1797, p. 216, § 17.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "revive actions" for "sue out a scire facias" preceding "and have execution" in the second sentence.

§ 915. Appointment of administrator to act with survivor.

When an executor or administrator dies, resigns, is removed or authority is otherwise extinguished, leaving a remaining executor or administrator, administration may be granted to some suitable person, to serve with the remaining executor or administrator, upon motion of any person interested in the estate of the deceased.

Amended 1985, No. 144 (Adj. Sess.), § 40; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2860. P.L. § 2787. G.L. § 3243. P.S. § 2769. V.S. § 2382. 1888, No. 81 , § 1.

Amendments--2017 (Adj. Sess.). Inserted "otherwise" following "authority is" and deleted ", as widow, heir, creditor, devisee, legatee or their legal representatives" following "deceased".

Amendments--1985 (Adj. Sess.). Deleted "his or her" preceding "authority", inserted "to serve" preceding "with" and substituted "the" for "such" thereafter and "motion" for "the application" following "upon".

§ 916. Powers of administrator appointed to act with survivor.

An executor or administrator appointed under section 915 of this title shall have the same authority as the remaining executor or administrator and may prosecute or defend actions commenced by or against the former executor or administrator and may revive actions and have execution on judgments recovered in the name of the former executor or administrator on behalf of the estate.

Amended 1971, No. 185 (Adj. Sess.), § 172, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2860. P.L. § 2787. G.L. § 3243. P.S. § 2769. V.S. § 2383. 1888, No. 81 , § 2. R.L. § 2073. G.S. 51, § 15. R.S. 47, § 15. 1821, p. 53. R. 1797, p. 216, § 17.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "revive actions" for "sue out a scire facias" preceding "and have execution" and "the" for "such" preceding "former".

ANNOTATIONS

1. Scire facias by administrator de bonis non.

Scire facias which an administrator appointed in place of former executor or administrator was authorized to sue out upon judgment recovered in name of such former executor or administrator, could be sued out and an execution obtained in name of administrator de bonis non, his representative capacity as such being stated. Hunt v. Payne, 29 Vt. 176 (1857).

§ 917. Power of regulation.

The Probate Division of the Superior Court shall regulate the conduct of persons appearing in proceedings or involved in the administration of estates or other matters within the court's jurisdiction. When it appears to the court that a person has failed to comply with procedures required by law or the Rules of Probate Procedure, or that an estate is not being promptly and properly administered, or that a fiduciary is incapable or unsuitable to discharge the trust, the court may give notice of the complaint or omission together with a notice to correct the deficiency or complaint within a specified period of time or cause the party to appear and answer the matter. Notice shall be given as provided by the Rules of Probate Procedure. The court may restrain a person from performing specified acts or the exercise of any powers or discharge of any duties of office, or make any other order to secure proper performance of duty. It may exercise the powers of contempt; tax costs, including surcharge; order a party to pay to other parties the amount of reasonable expenses, including reasonable attorney's fees, or losses incurred because of an act or omission; and remove or suspend a fiduciary.

Amended 1985, No. 144 (Adj. Sess.), § 41; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2861. P.L. § 2788. G.L. § 3244. 1917, No. 254 , § 3196. P.S. § 2770. V.S. § 2384. R.L. § 2074. G.S. 50, § 9. G.S. 51, § 12. 1852, No. 20 , § 1. R.S. 46, § 9. R.S. 47, § 12. 1821, p. 43. R. 1797, p. 216, § 17. R. 1797, p. 227, § 37.

Amendments--2017 (Adj. Sess.). Inserted ", including reasonable attorney's fees," following "expenses" in the last sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Supervision of fiduciaries generally, see Rule 67, V.R.P.P.

ANNOTATIONS

Analysis

1. Removal.

Probate court could vacate appointment of an executor because of grounds for removal specified in this section. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

Executor had right of appeal from order of probate court removing him and appointing an administrator in his place. In re Bellows' Estate, 60 Vt. 224, 14 A. 697 (1887).

Court of probate should not remove executors living out of state, and grant administration to another, when fact of their living out of the state was known at time of granting letters testamentary, when such executors have commenced a suit to recover a claim, and application for their removal is made by person sued. Wiley v. Brainerd, 11 Vt. 107 (1839).

2. Conflict of interest.

Administrator or executor who had a conflicting personal interest which would prevent him from doing his official duty was unsuitable to act in such capacity. In re Estate of McGowan, 118 Vt. 170, 102 A.2d 856 (1954).

Cited. In re Estate of Hogg, 147 Vt. 101, 510 A.2d 1323 (1986).

§ 917a. Termination of appointment.

  1. Termination of appointment of an executor or administrator ends the rights and powers pertaining to the office as conferred by law, the Rules of Probate Procedure, or any will or trust. Termination does not discharge an executor or administrator from liability for transactions or omissions occurring before termination, or relieve the executor or administrator of the duty to preserve assets subject to the executor's or administrator's control, or to account for and deliver assets. Termination does not affect the jurisdiction of the Probate Division of the Superior Court over the fiduciary, but terminates the estate fiduciary's authority.
  2. The appointment of an executor or administrator is terminated:
    1. upon death;
    2. when the estate is closed as provided by the Rules of Probate Procedure;
    3. after resignation upon the appointment of a successor estate fiduciary and delivery of the assets to the successor; or
    4. upon removal by the Probate Division of the Superior Court.

      Added 1985, No. 144 (Adj. Sess.), § 42; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsec. (a) and subdiv. (b)(4).

Cross References

Cross references. Closing a probate estate, see Rule 60.1, Vermont Rules of Probate Procedure.

Exoneration of surety upon discharge of fiduciary, see § 2107 of this title.

§ 918. One of the coexecutors disqualified, others may act.

When coexecutors appointed in a will cannot act as such, those who can act may be appointed to administer the estate.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2863. P.L. § 2790. G.L. § 3246. P.S. § 2772. V.S. § 2386. R.L. § 2076. G.S. 50, § 11. R.S. 46, § 11. 1821, p. 44.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 919. Persons unheard from for five years; settlement of estate.

When a person is absent and unheard from for five years or when a certificate of presumed death of a person has been issued under 18 V.S.A. § 5219 , that person's estate shall be subject to administration by the Probate Division of the Superior Court. If a will exists, the will shall be presented to the court and may be allowed and the estate closed thereunder. If no will is found, the court having jurisdiction of the estate may grant letters of administration thereof and proceed with the estate as in the settlement of intestate estates. Distribution of the estate shall not be made until five years after the granting of administration or letters testamentary. Before granting an order for distribution or for payment of legacies named in any will that may have been allowed, the court shall require from the legatees or distributees a bond or bonds with sufficient surety to the court, which may take into account the likelihood of the reappearance of the person presumed deceased, conditioned to return the amount distributed or paid with lawful interest thereon to the person so absent and unheard from upon reappearance and demand for the same. If the distributee or legatee is unable to give the security required by this section, the same shall be placed at interest upon security approved by the court or by the executor or administrator, as the case may be, and the interest shall be paid annually to the distributee or legatee and the estate shall remain at interest until the Probate Division of the Superior Court by which the letters of administration or letters testamentary were granted shall order it paid to the legatees or distributees. Upon motion, an order shall not be made permitting payment or distribution without the security required by this section until at least seven years have elapsed since the granting of letters testamentary or of administration on the estate of the supposed decedent.

Amended 1985, No. 144 (Adj. Sess.), § 43; 1989, No. 236 (Adj. Sess.), § 2, eff. June 4, 1990; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2864. P.L. § 2791. G.L. § 3247. P.S. § 2773. 1906, No. 82 , § 1. V.S. § 2387. R.L. § 2077. 178, No. 57 . 1876, No. 82 , § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1989 (Adj. Sess.). Inserted "or when a certificate of presumed death of a person has been issued under section 5219 of Title 18" following "five years" in the first sentence.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence, added the second sentence, substituted "no will is found, the court" for "he left no will, the probate court" following "if" in the third sentence, substituted "allowed" for "probated" following "which may have been" in the fourth sentence, deleted "by him" following "annually" in the fifth sentence, inserted "upon motion" preceding "an order shall not be made" at the beginning of the sixth sentence and deleted "upon such an application" thereafter, and made other minor stylistic changes throughout the section.

§ 920. Liability of executor; rights on return.

After the administration and distribution, the executor or administrator shall not be liable to the person so absent and unheard from in any action for the recovery of the estate. If the absent person proves to be alive, he or she shall be entitled to his or her estate notwithstanding a settlement and distribution made pursuant to section 919 of this title, and may bring an action to recover any portion of the estate that anyone received as a result of the settlement and distribution.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2865. P.L. § 2792. G.L. § 3247. P.S. § 2773. 1906, No. 82 , § 1. V.S. § 2387. R.L. § 2077. 1878, No. 57 . 1876, No. 82 , § 2.

Revision note. Deleted "of contract" following "action" in the second sentence to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 921. Property of persons serving in armed force - Absent persons, conservator.

When a person, hereinafter referred to as an absentee, who is serving in or with the U.S. Armed Forces, its allies, or as a crew member of a merchant vessel, has been reported or listed as missing, missing in action, interned, or beleaguered, besieged, or captured by an enemy, and has an interest in any property in this State and has not provided an adequate power of attorney authorizing another to act on the absentee's behalf in regard to the absentee's property, the Probate Division of the Superior Court may appoint a conservator to take charge of the absentee's estate under the supervision and subject to the further orders of the court. The appointment may be made upon a petition alleging the foregoing facts, showing the necessity of providing for the care of property, and may be brought by any person who would have an interest in the property if the absentee were deceased, or on the court's own motion. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

Amended 1985, No. 144 (Adj. Sess.), § 44; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2866. 1947, No. 202 , § 2889. 1945, No. 34 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "U.S. Armed Forces" for "armed forces of the United States" preceding "its allies".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, V.R.P.P.

Scheduling of hearings, see Rule 40, V.R.P.P.

§ 922. Powers of conservator; bond.

The Probate Division of the Superior Court shall have full discretionary authority to appoint any suitable person as conservator and may require the conservator to post an adequate surety bond and to make reports the court may deem necessary. The conservator shall have the same powers and authority as the guardian of the property of a minor or incapacitated person.

Amended 1985, No. 144 (Adj. Sess.), § 45; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2867. 1945, No. 34 , § 2.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Inserted "probate" preceding "court shall" and made other minor stylistic changes in the first sentence and substituted "a minor or incapacitated person" for "an infant or incompetent and shall be considered as an officer or arm of the court" following "property of" in the second sentence.

Cross References

Cross references. Probate bonds, see § 2101 et seq. of this title.

§ 923. Termination of conservatorship.

At any time upon motion signed by the absentee, or of an attorney-in-fact acting under an adequate power of attorney granted by the absentee, the Probate Division of the Superior Court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the absentee or to the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died and an executor or administrator has been appointed for the absentee's estate, the court shall direct the termination of the conservatorship, an accounting therein, and the transfer of all property of the deceased absentee held thereunder to the executor or administrator.

Amended 1985, No. 144 (Adj. Sess.), § 46; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2868. 1945, No. 34 , § 3.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "petition" preceding "signed by the absentee, or" and deleted "on petition" thereafter and inserted "probate" preceding "court" in the first sentence, and substituted "the absentee's" for "his" following "appointed for" and made other minor stylistic changes in the second sentence.

§ 924. Revocation of letters of administration - When will discovered.

When, after granting letters of administration of the estate of a person as if dying intestate, a will of the deceased person is allowed, the letters of administration shall be revoked and the powers of the administrator cease, the letters of administration shall be surrendered, and an accounting shall be filed as the Probate Division of the Superior Court directs.

Amended 1985, No. 144 (Adj. Sess.), § 47; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2869. P.L. § 2793. G.L. § 3248. P.S. § 2774. V.S. § 2388. R.L. § 2078. G.S. 51, § 16. R.S. 47, § 16. 1821, p. 42.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 925. Powers of executor of discovered will.

In such case, the executor of the will may demand, sue for, and collect the goods, chattels, rights, and credits of the deceased remaining unadministered, and may prosecute to final judgment actions commenced by the administrator before the revocation of his or her letters of administration.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2870. P.L. § 2794. G.L. § 3249. P.S. § 2775. V.S. § 2389. R.L. § 2079. G.S. 51, § 17. R.S. 47, § 17.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 926. Revocation of letters not to avoid acts under them.

Before the revocation of his or her letters testamentary or of administration, the acts of an executor or administrator shall be valid the same as if revocation had not been made.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2871. P.L. § 2795. G.L. § 3250. P.S. § 2776. V.S. § 2390. R.L. § 2080. G.S. 51, § 18. R.S. 47, § 18. 1821, p. 42. R. 1797, p. 240, § 67.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 927. Executor or administrator of deceased partner - access to books.

The executor or administrator of a deceased partner at all times shall have access to and make examination and take copies of the books and papers relating to the partnership business, and at all times shall have the right to examine and make invoices of the property belonging to the partnership. The surviving partner or partners, on request, shall exhibit to him or her all the books, papers, and property in their hands or control.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2877. P.L. § 2801. G.L. § 3256. P.S. § 2782. V.S. § 2396. R.L. § 2086. 1867, No. 46 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "partnership"; inserted "or her" following "him"; and substituted "the" for "such" preceding "books".

§ 928. Probate Division of the Superior Court may compel compliance.

The Probate Division of the Superior Court in which is pending a proceeding for the settlement of the estate of a deceased partner, on motion of the executor or administrator, may cite a surviving partner or partners before it, and, by a proper order or decree, compel the granting of the rights given in section 927 of this title and may enforce an order or decree by issuing its warrant to commit the partner or partners to the custody of the Commissioner of Corrections until compliance is given.

Amended 1985, No. 144 (Adj. Sess.), § 48; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2878. P.L. § 2802. G.L. § 3257. P.S. § 2783. V.S. § 2397. R.L. § 2087. 1867, No. 46 , § 2.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 929. Buildings to be kept in repair.

An executor or administrator shall maintain in tenantable repair the houses, buildings, and fences belonging to the estate and deliver the same in such repair to the heirs or devisees when directed by the Probate Division of the Superior Court.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2879. P.L. § 2803. G.L. § 3258. P.S. § 2784. V.S. § 2398. R.L. § 2088. G.S. 52, § 6. R.S. 48, § 6. 1821, p. 50. R. 1797, p. 233, § 50. R. 1787, p. 57.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 930. Estate not willed.

An executor shall administer the estate of the testator not disposed of by will.

History

Source. V.S. 1947, § 2880. P.L. § 2804. G.L. § 3259. P.S. § 2785. V.S. § 2399. R.L. § 2089. G.S. 49, § 5. R.S. 45, § 5. 1821, p. 39. R. 1797, p. 212, § 8.

§ 931. Limitation on claims of creditors.

All claims against the decedent's estate that arose before the death of the decedent, including claims of the State and any subdivision thereof, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the legal representative of the estate, and the heirs and devisees of the decedent, unless presented within one year after the decedent's death. Nothing in this section affects or prevents any proceeding to enforce any mortgage, pledge, or other lien upon the property of the estate.

Added 1973, No. 228 (Adj. Sess.), § 1, eff. April 3, 1974; amended 1985, No. 144 (Adj. Sess.), § 49; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Cross References

Cross references. Actions by and against administrators, see § 1401 et seq. of this title.

Settlement of claims, see § 1201 et seq. of this title.

Subchapter 2. Special Administrators

Cross References

Cross references. Appointment of special administrator to act on claim between executor or administrator and estate, see § 1412 of this title.

§ 961. Special administrator; appointment when estate jeopardized; conduct of business.

When the interests of the estate of a deceased person will be jeopardized by the delay intervening between death and the appointment of an administrator or executor, the Probate Division of the Superior Court may, upon motion of an heir or next of kin, appoint a special administrator to act until an administrator or executor is appointed and qualified. The special administrator may continue operation of the business conducted by the deceased, including application for and operating under the transfer of any license held by the deceased for the dispensing of alcoholic beverages.

Amended 1985, No. 144 (Adj. Sess.), § 50; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1949, No. 64 .

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "death" for "the decease of such person" following "between" and "motion" for "the application" following "upon" in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Transfer of alcoholic beverage license to executor or administrator, see § 235 of Title 7.

§ 962. Appointment in case of delay.

When there is delay in granting letters testamentary or of administration, occasioned by an appeal from the allowance or disallowance of a will, or from other cause, the Probate Division of the Superior Court may appoint a special administrator to act in collecting and taking charge of the estate of the deceased until the questions causing the delay are decided and an executor or administrator is appointed. An appeal shall not be allowed from the appointment of a special administrator.

Amended 1985, No. 144 (Adj. Sess.), § 51; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2872. P.L. § 2796. G.L. § 3251. P.S. § 2777. V.S. § 2391. R.L. § 2081. G.S. 51, § 5. R.S. 47, § 5. 1821, p. 41.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "a special" for "an" following "appoint" and deleted "thereupon" preceding "appointed" in the first sentence and made other minor stylistic changes in the second sentence.

ANNOTATIONS

Analysis

1. Appointment as general administrator.

Fact that a person had been appointed special administrator was not conclusive of the fitness of such person to act as general administrator. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Expenses.

Where special administrator was appointed upon an appeal from establishment of a will, only such of administrator's expenses as would not have been necessary but for appeal may be recovered in action on appeal bond conditioned for payment of "all intervening damages and costs." Probate Court v. Dodge, 87 Vt. 133, 88 A. 529 (1913).

3. Termination of trust.

Where a special administrator is not otherwise connected with the administration, he cannot relieve himself of the trust by any turning over of the property before the appointment of an executor or administrator, and where the special administrator is also named in the will as executor, the final establishment of the will does not in itself terminate the trust as special administrator. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

4. Actions by heirs.

Special administrator was properly allowed to become a party plaintiff in suit in equity by intestate's heir to set aside intestate's conveyance of realty and personalty, for an accounting and for general relief. Slafter v. Savage, 89 Vt. 352, 95 A. 790 (1915).

§ 963. Powers.

A special administrator shall collect the goods, chattels, and credits of the deceased and preserve the same for the executor or administrator afterwards appointed and for that purpose may commence and maintain actions as an administrator and may sell perishable and other personal estate as the Probate Division of the Superior Court orders sold and may allow or deny claims against the estate as otherwise provided by law.

Amended 1985, No. 144 (Adj. Sess.), § 52; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2873. P.L. § 2797. G.L. § 3252. P.S. § 2778. V.S. § 2392. R.L. § 2082. G.S. 51, § 6. R.S. 47, § 6.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" with "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Claims against estate.

Special administrator had no authority to compound a disputed claim, but if he did so in good faith, and those interested in the estate were present upon settlement of his account and acquiesced in his action, they would be estopped from afterwards setting up his want of authority. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

§ 964. Liability for debts.

A special administrator shall not be liable to an action by a creditor or to pay any debts of the deceased. With the consent of the Probate Division of the Superior Court, he or she may pay the expenses of the last sickness and the funeral expenses of the deceased and any bills against the estate of the deceased of his or her own contracting.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2874. P.L. § 2798. 1929, No. 44 , § 1. G.L. § 3253. P.S. § 2779. V.S. § 2393. R.L. § 2083. G.S. 51, § 7. R.S. 47, § 7.

Amendments--2017 (Adj. Sess.). Substituted "A" for "Such" preceding "special administrator".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 965. Bond.

Before entering upon the duties of his or her trust, a special administrator shall give a bond as the court directs, conditioned that he or she will make and return a true inventory of the goods, chattels, rights, credits, and effects of the deceased that come to his or her possession or knowledge, and that he or she will truly account for such as are received by him or her, when required by the Probate Division of the Superior Court, and will deliver the same to the person afterwards appointed executor or administrator or to a person authorized to receive the same.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2875. P.L. § 2799. G.L. § 3254. P.S. § 2780. V.S. § 2394. R.L. § 2084. G.S. 51, § 8. R.S. 47, § 8.

Amendments--2017 (Adj. Sess.). Substituted "a" for "such" preceding "special".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

1. Termination of liability.

Surety on bond of special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by § 2105 of this title. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

§ 966. Powers to cease, when.

Upon granting letters testamentary or of administration on the estate of the deceased, the powers of the special administrator shall cease. He or she shall forthwith deliver to the executor or administrator the goods, chattels, monies, and effects of the deceased in his or her hands, and the executor or administrator may prosecute to final judgment actions commenced by the special administrator.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2876. P.L. § 2800. G.L. § 3255. P.S. § 2781. V.S. § 2395. R.L. § 2085. G.S. 51, § 9. R.S. 47, § 9.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "special administrator" and "monies," for "moneys" following "chattels".

ANNOTATIONS

1. Termination of trust.

Where a special administrator is not otherwise connected with the administration, he cannot relieve himself of trust by any turning over of property before appointment of an executor or administrator, and where special administrator is also named in will as executor, final establishment of the will does not in itself terminate trust as special administrator. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

CHAPTER 63. INVENTORY, APPRAISAL, AND ACCOUNTS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1051. Inventory.

Within 60 days after appointment, an executor or administrator, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any lien or encumbrance that may exist with reference to any item. The executor or administrator shall file the original of the inventory with the Probate Division of the Superior Court, and shall serve copies as provided by the Rules of Probate Procedure. The time for filing the inventory may be extended by the court for good cause.

Amended 1975, No. 240 (Adj. Sess.), § 2; 1985, No. 144 (Adj. Sess.), § 53; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2881. P.L. § 2805. G.L. § 3260. P.S. § 2786. 1896, No. 41 , § 2. V.S. § 2400. R.L. § 2090. G.S. 52, § 1. R.S. 48, § 1. 1821, p. 44. R. 1797, p. 217, § 18. R. 1797, p. 221, § 26. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Substituted "60" for "30" preceding "days" in the first sentence and "good cause" for "period not to exceed a total of 90 days" following "court for" in the third sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "appointment" and following "time of" in the first sentence, substituted "serve copies as provided by the rules of probate procedure" for "mail a copy of the inventory to interested persons who request it" following "court, and shall" at the end of the second sentence, and deleted "probate" preceding "court" in the third sentence.

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Articles not included in inventory, see § 1054 of this title.

Supplementary inventory, see § 1052(b) of this title.

ANNOTATIONS

Analysis

1. Items in inventory.

Where deceased had conveyed real estate to daughter, so that latter became and remained sole and absolute owner thereof, such real estate had no proper place in "a true inventory" of estate of deceased. Trask v. Walker's Estate, 100 Vt. 51, 134 A. 853 (1926).

2. Inventory as evidence.

In view of requirement that executor shall within specified period file inventory of goods, chattels, rights, and credits of deceased coming to his "possession or knowledge," such inventory, standing alone, was not conclusive as to the executor's possession of assets shown by inventory at date thereof. Reed v. Hendee, 100 Vt. 351, 137 A. 329 (1927).

Inventory of estate of intestate by committee duly appointed to appraise same, and certified under oath, was legitimate evidence upon which probate court could determine question of assignment to widow or minor children for their support. Boyden v. Ward, 38 Vt. 628 (1866).

Cited. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1052. Appraisers.

The executor or administrator may employ one or more qualified and disinterested appraisers to assist in ascertaining the fair market value as of the date of the decedent's death of any assets the value of which may be subject to reasonable doubt. The names and addresses of any appraisers shall be indicated on the inventory with the item or items appraised.

Amended 1975, No. 240 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 54; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2882. P.L. § 2806. G.L. § 3261. P.S. § 2787. V.S. § 2401. R.L. R.L. § 2091. G.S. 52, § 2. R.S. 48, § 2. 1821, p. 44. R. 1797, p. 217, § 18. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "him" following "assist" in the first sentence and "he" following "items" in the third sentence.

Subsec. (b): Deleted "he, shall make" following "misleading", inserted "shall be made" preceding "showing" and substituted "serve copies of it as provided by the rules of probate procedure" for "mail copies thereof, to all interested persons to whom a copy of the original inventory was furnished, and to any other persons interested in the new information, who request it" following "court and".

Subsec. (c): Substituted "motion" for "petition" preceding "filed" and deleted "in the probate court" thereafter and substituted "any" for "such" following "omitted from".

Amendments--1975 (Adj. Sess.). Section amended generally.

§ 1053. Supplemental inventory.

  1. If the executor or administrator learns of the existence of any property not included in the original inventory or learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the executor or administrator shall:
    1. make a supplementary inventory or appraisal showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisals or other data relied upon, if any; and
    2. file the supplementary inventory or appraisal with the court and serve copies of it as provided by the Rules of Probate Procedure.
  2. Upon motion filed within 30 days after the filing of an original or supplemental inventory by any creditor having a claim of more than $1,000.00, or by any heir, devisee, or legatee entitled to property or cash of value of more than $500.00 on distribution of the estate, the court shall hold a hearing and may appoint one or more special appraisers to reappraise any item of property reported in the inventory or to appraise any property omitted from the inventory.

    Added 2017, No. 195 (Adj. Sess.), § 6.

History

Former § 1053. Former § 1053, relating to duties of appraisers, was derived from V.S. 1947, § 2883; P.L. § 2807; G.L. § 3262; P.S. § 2788; V.S. § 2402; R.L. § 2092; G.S. 52, § 3; R.S. 48, § 3; 1821, p. 44; R. 1797, p. 217, § 18; R. 1787, p. 51. This section was previously repealed by 1975, No. 240 (Adj. Sess.), § 12.

§ 1054. Assets not inventoried.

Wearing apparel of the deceased or any other member of the household, and provisions and other articles to be consumed or used in the subsistence of the household, shall not be considered as assets of the estate unless, after hearing upon motion, the court finds that an item has intrinsic value in addition to its value for wear or subsistence, or that its inclusion in inventory would otherwise benefit the estate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2884. 1947, No. 202 , § 2907. P.L. § 2808. G.L. § 3263. P.S. § 2789. V.S. § 2403. R.L. § 2093. G.S. 52, § 4. R.S. 48, § 4. 1838, No. 18 . 1821, p. 46. R. 1787, p. 59.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Wardrobe.

If it did not otherwise appear, legal presumption was that wife's wardrobe was furnished by husband, it being his duty to furnish it, and on her decease it belonged to husband and was no part of wife's estate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

§ 1055. Accounts of executors and administrators; time of rendering; examination.

An executor or administrator shall render an account of his or her administration within one year from the time of receiving letters testamentary or of administration, and annually thereafter, or otherwise as ordered by the Probate Division of Superior Court until the estate is wholly settled. The fiduciary may be examined on oath upon any matter relating to the account.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2885. 1947, No. 202 , § 2908. P.L. § 2809. 1923, No. 53 , § 1. 1919, No. 88 , § 1. G.L. § 3264. P.S. § 2790. V.S. § 2404. R.L. § 2094. G.S. 54, § 9. R.S. 50, § 9.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Form of accounts, see Rule 66(c), Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Concealment of property.

Where there was concealment of property by executrix, probate court could grant complete relief, even after final account had been settled. Davis v. Eastman, 66 Vt. 651, 30 A. 1 (1894).

2. Account as evidence.

Administrator's interim accounting filed in probate court is a declaration in writing made in discharge of the administrator's duties as legal representative of the estate and, as such, its admission against the interest of the estate should have been received in evidence in a subsequent chancery proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552 (1966).

Cited. In re Estate of Everett, 114 Vt. 256, 44 A.2d 149 (1945).

§ 1056. Liability on bond for neglect.

When an executor or administrator, being duly cited by the Probate Division of the Superior Court, neglects to render a required account, the fiduciary shall be liable on the fiduciary's bond for the damages which accrue.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2886. P.L. § 2810. G.L. § 3265. P.S. § 2791. V.S. § 2405. R.L. § 2095. G.S. 54, § 12. R.S. 50, § 11.

Amendments--2017 (Adj. Sess.). Substituted "a required" for "his or her" preceding "account," "the fiduciary" for "he or she" preceding "shall", and "the fiduciary's" for "his or her" preceding "bond."

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Basis of action on bond.

Decree in probate court that administrator ought to render his account was sufficient basis upon which to predicate a suit upon bond given to secure performance of orders of the probate court. French v. Winsor, 24 Vt. 402 (1852).

§ 1057. For what to account.

The accounting of the executor or administrator shall:

  1. be done on a cash basis;
  2. include the balance at the beginning of the period covered by the accounting, all receipts, all payments, and the balance at the end of the period covered by the accounting; and
  3. be prepared on forms provided by the court, or on any spreadsheet or generally accepted software format accepted by the court that provides the required information.

    Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2887. P.L. § 2811. G.L. § 3266. P.S. § 2792. V.S. § 2406. R.L. § 2096. G.S. 54, §§ 1, 2. R.S. 50, §§ 1, 2. 1821, p. 46. R. 1797, p. 218, § 19. R. 1797, p. 231, § 47. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Rewrote section.

ANNOTATIONS

Analysis

1. Account for administration in another state.

The principal administration being in this state, and the same person being also administrator in New Hampshire, and not having closed his administration there for a long time, shall be held accountable here for monies he received in New Hampshire before he took administration there and also for monies received afterwards, for property which he had not inventoried there, and for which he had not accounted there. Woods v. Creditors, 4 Vt. 256 (1832).

2. Disallowed claims.

An administrator could not charge in his account for payment of a claim disallowed by commissioners, after right of appeal had lapsed, nor could he charge for payment of a claim not presented to commissioners, if claimant had no further right to petition probate court to open the commission. French v. Winsor, 24 Vt. 402 (1852).

3. Payment by personal note.

Administrator who gave his personal note in payment of a claim against estate was entitled to a credit in his account for amount thereof. Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 A. 101 (1903).

Since commissioner was warranted in assuming that administrator had given his personal obligation for a distributive share, credit to administrator for amount thereof was properly allowed. Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 A. 101 (1903).

4. Interest.

Administrator should be charged with interest received by him on interest-bearing notes. Probate Court v. Winch, 57 Vt. 282 (1884).

An administrator should be charged with interest on monies he received for estate, during time of any delay of a settlement of estate, or when he could fairly be presumed to have used money, or had safe opportunities to have kept same at interest. Woods v. Creditors, 4 Vt. 256 (1832).

5. Sale of property.

Administrator was chargeable with full cash price for which property of estate was sold, though through error a less sum was actually received. Carpenter v. Stowe's Estate, 75 Vt. 114, 53 A. 360 (1902).

6. Payment of legacies.

It was negligence on part of executor to deliver a $1000 U.S. bond, worth at time in all markets of country $1200, to each of three legatees in payment of a $1000 legacy to each, and he was liable for the loss; and this was so although the executor obtained the value placed upon the bonds by the appraisers, and was told by the probate court that he could so deliver them to the legatees for what they were appraised. Spaulding v. Wakefield's Estate, 53 Vt. 660 (1881).

7. Fund created for payment of expenses.

Executor was liable for premium and interest on an $800 bond deposited in bank to create a fund upon which to draw to pay expenses of settling estate; as it was not found by commissioner that creation of such a fund was necessary. Spaulding v. Wakefield's Estate, 53 Vt. 660 (1881).

8. Commingling of funds.

If trustee commingles trust funds with his own and loss happens by transaction, he must make good entire loss to trust fund, both as to principal and interest. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

When a financial agent or attorney mixed money of his principal with his own by depositing it in his general bank account, and drew it out and used it in his own business, it was presumed that he had gained a benefit, and on failure to show how much he had derived from the use, he was chargeable for interest. Blodgett's Estate v. Converse's Estate, 60 Vt. 410, 15 A. 109 (1888).

An executor was chargeable only with simple interest, although he mingled and loaned funds of estate with his own, when he did so in good faith, disclosing all profits, and, without fault or want of prudence, suffered some losses, but claimed no deduction therefor and nothing for his services, when such interest exceeded what he actually received on funds, and funds had not been used in business, trade or speculation. Estate of Perkins v. Hollister, 59 Vt. 348, 7 A. 605 (1887).

9. Negligence.

An executor was chargeable in his administration account with assets of estate which had been lost through his negligence. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

10. Liability for loss caused by agent.

Delay in recovering money of agent was negligence; and, although the masters found that administrator acted in good faith, on his best judgment, and with ordinary care and prudence, he was liable for the loss, because no actual necessity was shown for employing agent, and no sufficient cause for allowing agent to hold the money four years without suit to recover it. McCloskey v. Gleason, 56 Vt. 264 (1883).

An administrator is liable for loss of avails of a note, when loss was caused by misappropriation of funds by his agent appointed by him to collect same, unless he proves, (a) that at the time he employed agent there was an actual necessity for such employment; (b) that he used the best accredited agencies; (c) that, if agent has used money collected, there was no delay in recovering it of him; (d) that in all respects he has exercised the diligence, care and prudence which a prudent man would under like circumstances; and burden of proof is on administrator. McCloskey v. Gleason, 56 Vt. 264 (1883).

11. Evidence.

In settlement of trustee's account trustee himself was a competent witness to all matters touching management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 1058. Not to gain or lose by increase or decrease in value.

An executor or administrator shall not profit by the increase, nor suffer loss by the decrease or destruction, without the fiduciary's fault, of any part of the estate. The executor or administrator shall account for any gain or loss incurred when any property is sold for more or less than the inventory value.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2888. P.L. § 2812. G.L. § 3267. P.S. § 2793. V.S. § 2407. R.L. § 2097. G.S. 54, § 3. R.S. 50, § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

§§ 1059, 1060. Repealed. 2017, No. 195 (Adj. Sess.), § 6.

History

Former §§ 1059, 1060. Former § 1059, relating to not gaining or losing increase or decrease in value, was derived from V.S. 1947, § 2888; P.L. § 2812; G.L. § 3267; P.S. § 2793; V.S. § 2407; R.L. § 2097; G.S. 54, § 3; R.S. 50, § 3.

Former § 1060, relating to accountability for proceeds of realty, was derived from V.S. 1947, § 2890; P.L. § 2814; G.L. § 3269; P.S. § 2795; V.S. § 2409; R.L. § 2099; G.S. 52, § 33; R.S. 48, § 29.

§ 1061. When not accountable for debts due.

An executor or administrator shall not be accountable for debts due the deceased if it appears that they remain uncollected without his or her fault.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2891. P.L. § 2815. G.L. § 3270. P.S. § 2796. V.S. § 2410. R.L. § 2100. G.S. 54, § 6. R.S. 50, § 6.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 1062. Use by executor or administrator.

If an executor or administrator uses or occupies any asset of the estate, the executor or administrator shall account for the use or occupancy upon agreement of the interested parties. If the parties do not agree upon the amount to be allowed, the court shall determine the proper amount, with the assistance of a master at the court's discretion.

Amended 1985, No. 144 (Adj. Sess.), § 55; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2892. P.L. § 2816. G.L. § 3271. P.S. § 2797. V.S. § 2411. R.L. § 2101. G.S. 54, § 7. R.S. 50, § 7.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--1985 (Adj. Sess.). Amended section generally.

Cross References

Cross references. Masters, see Rule 53, V.R.P.P.

ANNOTATIONS

1. Rent.

Where executor collected rents of real estate specifically devised, for space of one year from death of testator, he should account for same as a part of estate, although there was other personalty sufficient to pay debts and expenses of settlement. Allen v. Tarbell's Estate, 65 Vt. 150, 26 A. 65 (1893).

§ 1063. Accountable for losses by neglect.

When an executor or administrator neglects or unreasonably delays to raise money by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money the fiduciary has in his or her hands, and the value of the estate is thereby lessened, or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste, and the damages sustained may be charged and allowed against the fiduciary in the fiduciary's account or the fiduciary shall be liable for the damages on the fiduciary's bond.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2893. P.L. § 2817. G.L. § 3272. P.S. § 2798. V.S. § 2412. R.L. § 2102. G.S. 54, § 8. R.S. 50, § 8. 1821, p. 49. R. 1797, p. 233, § 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Good faith.

If an administrator, after a thorough investigation, honestly though erroneously believed that certain notes of the intestate were given away by him before his death, and for this reason did not attempt to obtain them or their proceeds, he would not be liable for the amount so lost to the estate. Holmes v. Bridgman, 37 Vt. 28 (1864).

2. Rent.

Where an executor agreed with his wife, who was a residuary legatee under will, that she should take in payment of her legacy a certain house and lot, property of estate but occupied by executor and his family, and in fulfillment of that agreement he conveyed property to his wife's sister, who was to deed it to his wife, but did not do so till about eleven years thereafter when she also filed her deed for record, and during those years estate incurred no expense in respect of property, executor was properly charged with rental thereof only to date of conveyance to his wife's sister, no claim being made that it was not advantageous to the estate thus to pay wife's legacy. In re Lane's Estate, 79 Vt. 323, 65 A. 102 (1906).

3. Sale of property.

Administrator was to be charged with a loss in sale of real estate which he might have saved by prudent management; especially when he was interested in last bid and purchase. Woods v. Creditors, 4 Vt. 256 (1832).

4. Collusion.

If an administrator neglects to seek redress from persons wrongfully withholding property of estate which he represents, being deterred therefrom by wrongdoers' giving him a bond of indemnity against all acts or omissions to act as administrator, he is guilty of collusion with them, and liable for amount lost to estate by his bad faith. Holmes v. Bridgman, 37 Vt. 28 (1864).

§ 1064. Costs to be allowed.

The amount paid by an executor or administrator for costs awarded against him or her shall be allowed in the fiduciary account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2894. P.L. § 2818. G.L. § 3273. P.S. § 2799. V.S. § 2413. R.L. § 2103. G.S. 54, § 13. R.S. 50, § 12.

Amendments--2017 (Adj. Sess.). Inserted "executor or" preceding "administrator" and substituted "the fiduciary" for "his or her administration" preceding "account".

Cross References

Cross references. Costs not to be taxed against estate, see § 1418 of this title.

Costs on appeal, see § 2567 of Title 12.

Taxation of costs in probate proceedings generally, see Rule 54, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Provision of section 2567 of Title 12, that costs taxed against executor or administrator shall be allowed to him in his administration account, was not to be construed literally, but was controlled by provision of this section that such costs shall be allowed unless it appears that action or proceeding in which they were taxed was prosecuted or resisted without just cause. In re Estate of Brace, 109 Vt. 360, 196 A. 742 (1938).

2. Appeal.

Supreme court had no discretion in allowance of costs accruing in county court upon trial of an appeal from probate court. Bliss v. Little's Estate, 64 Vt. 133, 23 A. 725 (1891).

3. Evidence.

Administrator should be allowed for his expenditures in a lawsuit in which he was unsuccessful, if he acted in good faith, and with reasonable prudence - and whether he did so or not, must ordinarily depend upon facts in each particular case. Wilson v. Bates, 28 Vt. 765 (1856).

§ 1065. Fees and expenses.

An executor or administrator shall be allowed necessary expenses in the care, management, and settlement of the estate and reasonable fees for services. When, by will, the deceased makes some other provisions for compensation to the executor, that shall be a full satisfaction for his or her services, unless, by a written instrument filed in the Probate Division of the Superior Court, the executor renounces all claim to the compensation provided by the will, or unless otherwise ordered by the court.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2895. P.L. § 2819. G.L. § 3274. P.S. § 2800. V.S. § 2414. R.L. § 2104. G.S. 54, § 11. R.S. 50, § 10.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Special administrator.

Special administrator held estate in trust for whomsoever was entitled to it, and was himself entitled to be compensated from the fund. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

2. Management of estate.

Executor or administrator was entitled to an allowance against estate for his time and services in taking care of property of estate, so long as it remained under his management, and he was accountable for it in that capacity, although use of property was bequeathed to another, who during all the time had income of it. Richardson v. True, 28 Vt. 676 (1856).

3. Per diem.

Executor was entitled to statutory fee per diem although, in ignorance of law, he made his charges at a lower rate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

4. Employees.

In preservation and protection of a large estate, one who was executor and trustee had, on facts found in case, a right to employ another as clerk, agent and attorney at a reasonable annual salary and to be compensated for his disbursements and obligations in that behalf out of estate. Sowles v. Hall, 73 Vt. 55, 50 A. 550 (1901).

5. Law suit expenditures.

Administrator will be allowed his account for expenditures in a law suit, in which he fails to recover, when he acts in good faith, and with reasonable prudence; but he may press on a suit with so little prudence, and so little prospect of recovery, that he ought not to be allowed his costs. Woods v. Creditors, 4 Vt. 256 (1832).

6. Attorney's fees.

An administrator who had misappropriated to some extent funds of an estate could be allowed for counsel fees upon a final accounting in probate court, if necessity for such legal services did not arise from fact of misappropriation. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

7. Agreement.

It was competent for all parties interested in an estate to agree with a proposed administrator that if he would accept appointment he would not be limited, in his charges for services, to statutory fees. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

Compensation agreement entered into by administrator and all parties interested in estate could be enforced by probate court upon settlement of administrator's account. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

8. Failure to comply with statutory requirements.

Failure of executor to comply with statutory requirements that he file his account within one year from receiving his letters testamentary, etc., should be considered in determining whether any, and if so, how much compensation shall be allowed him for his services; but such failure did not, in itself, operate as a bar to all compensation. In re Lane's Estate, 79 Vt. 323, 65 A. 102 (1906).

9. Commingling of funds.

As administrator mingled trust money with his own, he could be allowed nothing for his services in caring for same. McCloskey v. Gleason, 56 Vt. 264 (1883).

10. Maladministration.

An administrator should be allowed nothing for services rendered in maladministration of estate; but if his administration had been faithful for a certain period, he could be allowed for services during that period, although his subsequent administration was unfaithful. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

11. Appeal.

Executor was not entitled in supreme court to insist upon allowance of his charges for expenses incurred in settlement of his account, having failed to except to disallowance of those charges by county court. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

§ 1066. Verification; right of heir to be examined.

An accounting that is consented to by all interested parties shall be allowed without hearing unless the Probate Division of the Superior Court sets a hearing upon the accounting. At the hearing, the executor or administrator may be examined under oath by the court or interested parties. Interested parties may be examined under oath. An account shall not be rejected for de minimis discrepancies unless the court finds good cause to reject the account on that basis.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2896. P.L. § 2820. G.L. § 3275. P.S. § 2801. V.S. § 2415. R.L. § 2105. G.S. 54, § 10. 1856, No. 13 . 1850, No. 12 . 1846, No. 15 .

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Trustee as witness.

In settlement of trustee's account, trustee himself was a competent witness to all matters touching management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 1067. Notice of accounting.

Before an administration account of an executor or administrator is allowed, notice shall be given as provided by the Rules of Probate Procedure.

Amended 1975, No. 240 (Adj. Sess.), § 4; 1985, No. 144 (Adj. Sess.), § 56.

History

Source. V.S. 1947, § 2897. P.L. § 2821. G.L. § 3276. P.S. § 2802. V.S. § 2416. R.L. § 2106. G.S. 54, § 14. R.S. 50, § 13. 1821, p. 46. 1813, p. 101. R. 1797, p. 220, § 24. R. 1797, p. 233, § 51.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Accounts to be served on beneficiaries, see Rule 5.1, V.R.P.P.

Notice and service generally, see Rules 4 and 5, V.R.P.P.

Notice of hearing on account, see Rule 66(b), V.R.P.P.

ANNOTATIONS

Analysis

1. Sufficiency of notice by publication.

Notice by publication, in a small Vermont newspaper, of executor's final accounting, to alert a legatee whose out-of-state address was known, was not the best possible notice where personal notice was also allowed, was not reasonably calculated under all the circumstances to apprise interested parties of the pendency of the proceeding and afford them an opportunity to present objections, and could have resulted in a failure of due process. In re Estate of Duval, 133 Vt. 197, 332 A.2d 802 (1975).

Notice of order fixing date for final accounting of administrator and distribution of estate, by publication thereof in a specified weekly newspaper of the probate district having charge of the estate for three consecutive issues of such paper prior to date of hearing, was "public notice," and sufficient. In re Warner's Estate, 98 Vt. 254, 127 A. 362 (1925); Barber v. Chase, 101 Vt. 343, 143 A. 302 (1928).

2. Effect of insufficient notice.

Final decree of probate court allowing final account of executrix, having been made without compliance with section as to notice, was without force. Vermont-Peoples' National Bank v. Robbins' Estate, 105 Vt. 283, 166 A. 6 (1933).

§ 1068. Surety may intervene and appeal.

Upon the settlement of the account of an executor, administrator, or other person, a person liable as surety in respect to the account, upon motion, may intervene as a party and may appeal as provided in other cases of appeals from the decision of the Probate Division of the Superior Court. Before the appeal is allowed, the surety shall give a bond to secure the principal from damages and costs and to secure the intervening damages and costs to the adverse party.

Amended 1985, No. 144 (Adj. Sess.), § 57; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2898. P.L. § 2822. G.L. § 3277. P.S. § 2803. V.S. § 2417. R.L. § 2107. 1876, No. 84 .

Revision note. In the section heading, substituted "may intervene and" for "to be admitted as party; may" for purposes of conformity with the text of the section, as amended.

Deleted comma following "shall" in the second sentence to correct a grammatical error.

Amendments--2017 (Adj. Sess.). Substituted "Before" for "The surety in such case, before" and inserted "the surety" preceding "shall".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion, may intervene" for "application, may be admitted" preceding "as a party" and deleted "to such accounting" thereafter in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Intervention generally, see Rule 24, V.R.P.P.

§ 1069. Waiver of final accounting.

If an estate has been open for at least six months and the remaining assets include no real estate, a final accounting may be waived if the executor or administrator files with the court:

  1. the fiduciary's verified representation that all claims and all other obligations of the estate have been satisfied;
  2. a schedule of remaining assets to be distributed;
  3. a schedule of proposed distribution;
  4. a waiver of a final accounting and consent to the proposed distribution by all interested parties; and
  5. a tax clearance from the Vermont Department of Taxes.

    Added 2017, No. 195 (Adj. Sess.), § 6.

CHAPTER 65. COMMISSIONERS AND ALLOWANCE OF CLAIMS

Sec.

§§ 1151-1171. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1151, relating to appointment of commissioners to adjust claims, was derived from V.S. 1947, § 2899; 1947, No. 202 , § 2922; P.L. § 2832; G.L. § 3288; P.S. § 2814; V.S. § 2426; R.L. § 2115; G.S. 53, § 1; R.S. 49, § 1; 1821, p. 63; R. 1797, p. 249, § 82; R. 1787, p. 58.

Former § 1152, relating to swearing of and administration of oaths by commissioners, was derived from V.S. 1947, § 2900; P.L. § 2833; G.L. § 3289; P.S. § 2815; V.S. § 2427; R.L. § 2116; G.S. 53, § 10; R.S. 49, § 9; 1827, No. 11 , § 7; 1821, p. 63.

Former § 1153, relating to jurisdiction of commissioners, was derived from V.S. 1947, § 2901; P.L. § 2834; G.L. § 3290; P.S. § 2816; V.S. § 2428; R.L. § 2117; G.S. 53, §§ 12, 13; R.S. 49, §§ 11, 12; 1821, p. 65 and amended by 1963, No. 151 .

Former § 1154, relating to notice of hearings, was derived from V.S. 1947, § 2902; P.L. § 2835; G.L. § 3291; P.S. § 2817; V.S. § 2429; R.L. § 2118; G.S. 53, § 3; R.S. 49, § 3; 1821, p. 63; R. 1797, p. 249, § 82; R. 1787, p. 58, and amended by 1967, No. 16 , § 2.

Former § 1155, relating to publication and posting of notice, was derived from V.S. 1947, § 2903; P.L. § 2836; G.L. § 3292; P.S. § 2818; V.S. § 2430; R.L. § 2119; G.S. 53, § 4; R.S. 49, § 3; 1832, p. 63; R. 1797, p. 249, § 82.

Former § 1156, relating to removal of commissioners and filling of vacancies, was derived from V.S. 1947, § 2904; P.L. § 2837; G.L. § 3293; P.S. § 2819; V.S. § 2431; R.L. § 2120; 1865, No. 18 ; G.S. 53, § 5; R.S. 49, § 4; 1821, p. 64.

Former § 1157, relating to limitation and extension of time for presenting claims, was derived from V.S. 1947, § 2905; P.L. § 2838; G.L. § 3294; P.S. § 2820; V.S. § 2432; R.L. § 2121; G.S. 53, §§ 6, 7; R.S. 49, §§ 5, 6; 1821, p. 64; R. 1797, p. 249, § 82; R. 1787, p. 58, and amended by 1967, No. 16 , § 1.

Former § 1158, relating to petitions for extension of time to present claims, was derived from V.S. 1947, § 2906; P.L. § 2839; 1939, No. 157 , § 2626; 1929 No. 45, §§ 1, 2; 1923, No. 54 , § 1; 1921, No. 78 ; G.L. § 3295; 1908, No. 72 ; P.S. § 2821; V.S. § 2433; R.L. § 2122; 1867, No. 39 ; G.S. 53, § 8; 1847, No. 36 ; 1845, No. 26 ; R.S. 49, § 7; 1821, p. 64; 1817, p. 92.

Former § 1159, relating to report of commissioners, was derived from V.S. 1947, § 2907; P.L. § 2840; G.L. § 3296; P.S. § 2822; 1904, No. 69 , § 1; V.S. § 2434; R.L. § 2123; G.S. 53, § 11; R.S. 49, § 10; 1821, p. 64; R. 1797, p. 249, § 82; R. 1787, p. 58.

Former § 1160, relating to notice of time of filing report, was derived from V.S. 1947, § 2908; P.L. § 2841; G.L. § 3297; P.S. § 2823; V.S. § 2435; R.L. § 2124; 1876, No. 86 .

Former § 1161, relating to claims barred, was derived from V.S. 1947, § 2909; 1947, No. 202 , § 2932; P.L. § 2824; G.L. § 3298; P.S. § 2824; V.S. § 2436; R.L. § 2125; G.S. 53, § 14; R.S. 49, § 13; 1821, p. 65; R. 1797, p. 250, § 83; R. 1787, p. 58, and amended by 1971, No. 185 (Adj. Sess.), § 173.

Former § 1162, relating to set-off, was derived from V.S. 1947, § 2910; P.L. § 2845; G.L. § 3301; P.S. § 2826; V.S. § 2438; R.L. § 2127; G.S. 53, § 9; R.S. 49, § 8; 1821, pp. 63, 65.

Former § 1163, relating to actions by executors and administrators, was derived from V.S. 1947, § 2911; P.L. § 2851; G.L. § 3306; P.S. § 2831; V.S. § 2443; R.L. § 2131; G.S. 53, § 17; R.S. 49, § 16, and amended by 1971, No. 185 (Adj. Sess.), § 174.

Former § 1164, relating to recommitment of erroneous reports of commissioners, was derived from V.S. 1947, § 2912; P.L. § 2843; G.L. § 3299; 1917, No. 254 , § 3251; 1915, No. 96 .

Former § 1165, relating to reopening commission on application of a person in military service, was derived from V.S. 1947, § 2913; P.L. § 2844; G.L. § 3300; P.S. § 2825; V.S. § 2437; R.L. § 2126; G.S. 57, § 24.

Former § 1166, relating to special administrators to defend against claims of executors or administrators, was derived from V.S. 1947, § 2914; P.L. § 2846; G.L. § 3302; P.S. § 2827; 1906, No. 43 , § 1; V.S. § 2439; 1892, No. 48 ; 1888, No. 83 .

Former § 1167, relating to presentment, hearing and appeal of claims by executors or administrators, was derived from V.S. 1947, § 2915; P.L. § 2847; 1933, No. 157 , § 2634; 1929, No. 43 .

Former § 1168, relating to liability of joint debtor for whole debt, was derived from V.S. 1947, § 2916; P.L. § 2848; G.L. § 3303; P.S. § 2882; V.S. § 2440; R.L. § 2128; G.S. 53, § 18; R.S. 49, § 17.

Former § 1169, relating to suits against executors or administrators after appointment of commissioners, was derived from V.S. 1947, § 2917; P.L. § 2849; G.L. § 3304; P.S. § 2829; V.S. § 2441; R.L. § 2129; G.S. 53, § 15; R.S. 49, § 14; 1821, pp. 51, 67; R. 1797, p. 248, § 81.

Former § 1170, relating to discontinuance of pending actions, was derived from V.S. 1947, § 2918; P.L. § 2850; G.L. § 3305; P.S. § 2830; V.S. § 2442; R.L. § 2130; G.S. 53, § 16; R.S. 49, § 15; 1821, pp. 49, 67; R. 1797, p. 236, § 58; R. 1797, p. 256, § 89.

Former § 1171, relating to venue of actions by executors or administrators, was derived from V.S. 1947, § 2919; P.L. § 2852; G.L. § 3307; P.S. § 2832; V.S. § 2444; 1888, No. 49 .

CHAPTER 66. SETTLEMENT OF CLAIMS

Sec.

Cross References

Cross references. Limitation on claims of creditors, see § 931 of this title.

Procedure for creditors' claims against decedents' estates generally, see Rule 64, Vermont Rules of Probate Procedure.

Recovery of estate conveyed by deceased to defraud creditors, see §§ 1554-1559 of this title.

ANNOTATIONS

1. Purpose.

This chapter limiting the presentation of claims against a decedent's estate is intended to advance the swift and orderly distribution of that estate, where that can be done without prejudicing the rights of the decedent's creditors; the objective is to assure creditors sufficient notice that the estate is being settled and fair opportunity to present their claims. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

§ 1201. Notice to creditors.

  1. The Probate Division of the Superior Court may issue an order excusing the executor or administrator from complying with the notice to creditors provisions of the Rules of Probate Procedure when it appears to the court that:
    1. there are no debts existing against the decedent; or
    2. that the debts against the decedent are all known to the executor or administrator and there are funds to pay them; or
    3. the value of the estate does not exceed the sum of $2,500.00 and is assigned for the support of the surviving spouse.
  2. If notice is not given because an order is entered as provided in subsection (a) of this section, any assets distributed by the administrator or executor will be subject to any claims later established, and sections 1202 and 1203 of this title shall apply, but the executors or administrators will not be liable to distributees for losses to them when required to reimburse creditors.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 58; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subsec. (b), substituted "subsection (a) of this section" for "subsection (a)" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice generally, see Rule 4, V.R.P.P.

Notice to creditors of small estate proceedings, see Rule 80.3, V.R.P.P.

ANNOTATIONS

1. Construction.

Limitations period of tort action was not tolled by this section, where section added time to applicable statute of limitations only where notice was given to creditors under section, not where notice should have been given, tolling provision's purpose was to allow claimant opportunity to present and resolve claim without litigation, claimant had actual notice anyway, and there was no reason to give claimant more time where court had excused executor from giving notice. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

Plaintiff tort claimant was considered a claimant or creditor for purposes of limitations statute, since statutory terminology clearly intended to cover tort claimants. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 1202. Statutes of limitations.

Unless an estate is insolvent, the executor or administrator, with the consent of all heirs, devisees, and legatees, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some event other than death and advertisement for claims against a decedent is suspended during the four months following the first publication of notice under section 1201 of this title but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under section 1204 of this title is equivalent to commencement of a proceeding on the claim.

Added 1975, No. 240 (Adj. Sess.), § 7.

ANNOTATIONS

1. Construction.

Letters sent by plaintiff's attorneys did not amount to "proper presentation of a claim" within meaning of this section, for purposes of complying with statute of limitations, where first letter related to possible conflict of interest rather than statement of claim and omitted basic facts about claim, second letter was not delivered to administratrix or filed with probate court, and neither letter would have put administratrix on notice that a claim was being filed against estate. Austin v. Garceau, 159 Vt. 628, 619 A.2d 441 (mem.) (1992).

Plaintiff tort claimant was considered a claimant or creditor for purposes of this section, since statutory terminology clearly intended to cover tort claimants. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

Cited. King v. Federal Deposit Insurance Corp.,, 785 F. Supp. 58 (D. Vt. 1992).

§ 1203. Limitations on presentation of claims.

  1. All claims against a decedent's estate that arose before the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, except claims for the possession of or title to real estate and claims for injury to the person and damage to property suffered by the act or default of the deceased, if not barred earlier by other statute of limitations, are barred against the estate, the executor or administrator, and the heirs and devisees of the decedent, unless presented as follows:
    1. within four months after the date of the first publication of notice to creditors if notice is given in compliance with the Rules of Probate Procedure; provided, however, that claims barred by the nonclaim statute of the decedent's domicile before the first publication for claims in this State are also barred in this State;
    2. within one year after the decedent's death, if notice to creditors has not been published or otherwise given as provided by the Rules of Probate Procedure.
  2. All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the executor or administrator, and the heirs and devisees of the decedent, unless presented as follows:
    1. a claim based on a contract with the executor or administrator, within four months after performance by the executor or administrator is due;
    2. any other claim, within four months after it arises.
  3. Nothing in this section affects or prevents:
    1. any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
    2. to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the executor or administrator for which he or she is protected by liability insurance; or
    3. the enforcement of any tax liability.

      Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 59; 2017, No. 195 (Adj. Sess.), § 6a; 2019, No. 77 , § 20, eff. June 19, 2019; 2019, No. 167 (Adj. Sess.), § 16, eff. October 7, 2020.

History

Amendments--2019 (Adj. Sess.) Subsec. (c): Deleted "or" following "estate" in subdiv. (1) and added "or" following "liability insurance" in subdiv. (2).

Amendments--2019. Subsec. (a): Substituted "that" for "which" near the beginning of the introductory paragraph, and inserted "however, that" preceding "claims barred by the nonclaim" in subdiv. (a)(1).

Amendments--2017 (Adj. Sess.). Subdiv. (a)(2): Substituted "one year" for "three years" in the beginning of the sentence.

Amendments--1985 (Adj. Sess.). Subdiv. (a)(1): Substituted "the rules of probate procedure" for "section 1201 of this title" following "compliance with".

Subdiv. (a)(2): Added "or otherwise given as provided by the rules of probate procedure" following "published".

Subdiv. (c)(2): Inserted "or she" following "he".

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this section] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date.

ANNOTATIONS

1. Time limit for presenting claims.

When an executrix fails to give notice, creditors holding claims which arose before the death of the decedent properly have a longer time period in which to submit them. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

When an executrix publishes notice to creditors in accordance with the statutorily mandated procedure, claims which arose before the death of the decedent must be presented to the estate for payment within four months. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Cited. West v. Village of Morrisville, 563 F. Supp. 1101 (D. Vt. 1983), vacated, 728 F.2d 130 (2d Cir. 1984); In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); In re STN Enters., Inc., 73 B.R. 470 (Bankr. D. Vt. 1987); Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 1204. Manner of presentation of claims.

Claims against a decedent's estate may be presented as follows:

  1. The claimant shall deliver to the executor or administrator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and shall file a copy of the claim with the Probate Division of the Superior Court.  The claim is deemed presented on the first to occur of receipt of the written statement of claim by the executor or administrator, or the filing of the copy of the claim with the court.  If a claim is not yet due, the date when it will become due shall be stated.  If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated.  If the claim is secured, the security shall be described.  Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the claim made.
  2. The claimant may commence a proceeding against the executor or administrator in any court where the executor or administrator may be subjected to jurisdiction, to obtain payment of the claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim.  No presentation of claim is required in regard to matters claimed in proceedings against the decedent that were pending at the time of death.
  3. If a claim is presented under subdivision (1) of this section, no proceeding thereon may be commenced more than 60 days after the executor or administrator has mailed a notice of disallowance; but, in the case of a claim that is not presently due or that is contingent or unliquidated, the executor or administrator may consent to an extension of the 60-day period, or to avoid injustice, the court, on motion, may order an extension of the 60-day period, but in no event shall the extension run beyond the applicable statute of limitations.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 60; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subdiv. (3), substituted "subdivision (1)" for "division (1)" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Subdiv. (1): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subdiv. (1): Rewrote the first sentence, inserted "the copy of" preceding "the claim with the" and deleted "register of the" thereafter in the second sentence, and substituted "claim" for "presentation" preceding "made" at the end of the fifth sentence.

Subdiv. (2): Deleted "including small claims court" following "court" and substituted "the" for "his" following "payment of" in the first sentence and deleted "his" preceding "death" at the end of the second sentence.

Subdiv. (3): Substituted "motion" for "petition" following "court, on".

ANNOTATIONS

Analysis

1. Construction.

Letters sent by plaintiff's attorneys did not constitute proper presentation of claim as required by this section, and thus applicable statute of limitations was not met, where first letter related to possible conflict of interest rather than statement of claim and omitted basic facts about claim, second letter was not delivered to administratrix or filed with probate court, and neither letter would have put administratrix on notice that a claim was being filed against estate. Austin v. Garceau, 159 Vt. 628, 619 A.2d 441 (mem.) (1992).

2. Matters pending at time of decedent's death.

No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Where a hospital lien arises and is perfected pursuant to statute prior to the death of a decedent, perfection of the lien constitutes proceedings against the decedent pending at the time of his death, and excuses any further presentation of the claim to the executrix of the estate. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

This section, which provides time limits for presentation of claims against estate which have not been presented for payment before, was inapplicable to hospital claim for payment for services rendered; hospital's claim, represented by a lien which it perfected prior to death of decedent, came within statutory exception to presentation authorized for matters claimed in proceedings against the decedent which were pending at the time of his death. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Cited. In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); Knott v. Pratt, 158 Vt. 334, 609 A.2d 232 (1992).

§ 1205. Classification of claims.

  1. If the applicable assets of the estate are insufficient to pay all claims in full, the executor or administrator shall make payment in the following order:
    1. costs and expenses of administration;
    2. reasonable funeral, burial, and headstone expenses, and perpetual care, not to exceed $3,800.00 exclusive of governmental payments, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him or her;
    3. wages due employees which have been earned within three months prior to the death of the decedent, not to exceed $300.00 to each claimant;
    4. all other claims; including the balance of wages due but unpaid under subdivision (3) of this subsection.
  2. No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due but the same shall be prorated if there are insufficient assets to satisfy all claims within the class.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 2003, No. 128 (Adj. Sess.), § 1, eff. May 24, 2004.

History

Revision note. In subdiv. (a)(4), substituted "subdivision (3)" for "division (3)" to conform reference to V.S.A. style.

Amendments--2003 (Adj. Sess.) Subdiv. (a)(2): Substituted "$3,800.00" for "$1,000.00".

Cross References

Cross references. Recovery of welfare payments as preferred claim, see § 122 of Title 33.

Annotations From Former § 1260

1. Expenses of administration.

Where probate court had previously adjudicated executor's right to compensation, only reasonableness and correctness of charges to be allowed the executor and his attorney would be determined by county court on appeal de novo from probate court order restricting amount of compensation recoverable by executor and his counsel. In re Estate of Bove, 127 Vt. 25, 238 A.2d 789 (1968).

2. Funeral expenses.

Although necessary funeral expenses are debts against estate, and, after paying necessary expenses of administration, are preferred above all other debts, their payment must be ordered and allowed by the probate court before they can be charged to estate. Baldwin v. Taplin, 113 Vt. 291, 34 A.2d 117 (1943).

3. Wages.

Any claims for wages which came within the provisions of this section but were in excess of the limitation specified, would, as to such excess, stand in the same category as debts due to other creditors. 1942-44 Op. Atty. Gen. 288.

§ 1206. Allowance of claims.

  1. As to claims presented in the manner described in section 1204 of this title within the time limit prescribed in section 1203 of this title, the executor or administrator shall, if a claim is disallowed, mail a notice to any claimant stating that the claim has been disallowed.  If, after allowing or disallowing a claim, the executor or administrator changes his or her decision concerning the claim, he or she shall notify the claimant.  The executor or administrator may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred.  Every claim which is disallowed in whole or in part by the executor or administrator is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the executor or administrator not later than 60 days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar.  Failure of the executor or administrator to mail notice to a claimant of action on his claim for 60 days after the time for original presentation of the claim not otherwise barred has expired shall have the effect of allowance.
  2. Upon motion of the executor or administrator or petition of a claimant, the Probate Division of the Superior Court may allow in whole or in part any claim or claims timely presented. Notice in this proceeding shall be given as provided by the Rules of Probate Procedure.
  3. A judgment in a proceeding in another court against an executor or administrator to enforce a claim against a decedent's estate is an allowance of the claim.
  4. By agreement between a claimant and the executor or administrator, a claim may be referred to one or more arbitrators, chosen either by the claimant and the executor or administrator, or, if they so request, by the Probate Division of the Superior Court. The decision of the arbitrator shall be final and binding.
  5. Unless otherwise provided in any judgment in another court entered against the executor or administrator, allowed claims bear interest at the legal rate for the period commencing 60 days after the time for original presentation of claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 61; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsecs. (b) and (d).

Amendments--1985. (Adj. Sess.). Subsec. (a): Inserted "or her" following "his" and "or she" following "he" in the second sentence and inserted "not otherwise barred" preceding "has expired" and substituted "shall have" for "has" thereafter in the fifth sentence.

Subsec. (b): Amended generally.

ANNOTATIONS

Cited. In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); Knott v. Pratt, 158 Vt. 334, 609 A.2d 232 (1992).

§ 1207. Payment of claims.

  1. Upon the expiration of four months from the date of the first publication of the notice to creditors, the executor or administrator shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family, and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration.  By petition to the court in a proceeding for the purpose, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the executor or administrator to pay the claim to the extent that funds of the estate are available for the payment.
  2. The executor or administrator at any time may pay any just claim that has not been barred, with or without formal presentation, but he or she personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
    1. the payment was made before the expiration of the time limit stated in subsection (a) of this section and the executor or administrator failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
    2. the payment was made, due to the negligence or willful fault of the executor or administrator, in such manner as to deprive the injured claimant of his or her priority.

      Added 1975, No. 240 (Adj. Sess.), § 7.

Cross References

Cross references. Homestead interest of surviving spouse, see § 105 of Title 27.

Priority of claims, see § 1205 of this title.

§ 1208. Individual liability of executor or administrator.

  1. Unless otherwise provided in the contract, an executor or administrator is not individually liable on a contract properly entered into in his or her fiduciary capacity in the course of administration of the estate unless he or she fails to reveal his or her representative capacity and identify the estate in the contract.
  2. An executor or administrator is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he or she is personally at fault.
  3. Claims based on contracts entered into by an executor or administrator in his or her fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the executor or administrator in his or her fiduciary capacity, whether or not the executor or administrator is individually liable therefor.
  4. Issues of liability as between the estate and the executor or administrator individually may be determined in a proceeding for that purpose in this court or a proceeding in a court of competent jurisdiction.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 62.

History

Revision note. In subsec. (a), inserted "or her" following "reveal his" for purposes of conformity with text of remainder of section, as amended.

Amendments--1985 (Adj. Sess.). Subsec. (a): Inserted "or her" preceding "fiduciary" and "or she" following "he".

Subsec. (b): Inserted "or she" following "he".

Subsec. (c): Inserted "or her" following "his" in two places.

Subsec. (d): Amended generally.

§ 1209. Secured claims.

Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his or her security; otherwise payment is upon the basis of one of the following:

  1. if the creditor exhausts his or her security before receiving payment, unless precluded by other law upon the amount of the claim allowed less the fair value of the security; or
  2. if the creditor does not have the right to exhaust his or her security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and executor or administrator by agreement, arbitration, compromise, or litigation.

    Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1210. Claims not due and contingent or unliquidated claims.

  1. If a claim that will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
  2. In other cases the executor or administrator, or, on motion of the executor or administrator or the claimant, in a proceeding for the purpose, the Probate Division of the Superior Court, may provide for payment as follows:
    1. If the claimant consents, he or she may be paid the present or agreed value of the claim, taking any uncertainty into account.
    2. Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

      Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 63; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (b): Substituted "motion" for "petition" following "or, on", deleted "special" preceding "proceeding", inserted "probate" preceding "court" and made other minor stylistic changes in the introductory paragraph and inserted "or she" following "he" in subdiv. (1).

ANNOTATIONS

Analysis

1. Contingent claim.

Town's concern that the sewer system of a subdivision developed by the decedent could malfunction and threaten the town's aquifer at some time in the future was essentially a concern about the possibility of a future claim arising and was not a contingent claim. Hayes v. Town of Manchester Water & Sewer Bds., 198 Vt. 92, 112 A.3d 742 (2014).

2. Trusts.

When there was an oral contract between the decedents, who developed a subdivision, and the homeowners in which the decedents agreed to maintain the roads, water system, and sewer system at their own expense until the infrastructure was dedicated to and accepted by the town, the homeowners had established a claim for which the trial court could establish a trust to ensure that funds were available to meet the continuing obligations of the decedents under the oral agreements. Hayes v. Mt. View Estates Homeowners Ass'n, 207 Vt. 293, 188 A.3d 678 (Apr. 20, 2018).

§ 1211. Counterclaims.

In allowing a claim, the executor or administrator may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1212. Execution and levies prohibited.

No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or an executor or administrator, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1213. Compromise of claims.

When a claim against the estate has been presented in any manner, the executor or administrator may, if it appears for the best interests of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1214. Encumbered assets.

If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the executor or administrator may, except as otherwise provided by will, pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of his or her lien, in whole or in part, whether or not the holder of the encumbrance has filed a claim, if it appears to be for the best interests of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1215. Administration in more than one state; duty of executor or administrator.

  1. All assets of estates being administered in this State are subject to all claims, allowances, and charges existing or established against the executor or administrator wherever appointed.
  2. If the estate either in this State or as a whole is insufficient to cover all family exemptions and allowances, determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this State or elsewhere in administrations of which the executor or administrator is aware, is entitled to receive payment of an equal proportion of his or her claim.  If a preference or security in regard to a claim is allowed in another jurisdiction but not in this State, the creditor so benefited is to receive dividends from local assets only upon the balance of his or her claim after deducting the amount of the benefit.
  3. In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately, and this State is not the state of the decedent's last domicile, the claims allowed in this State shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary executor or administrator.  If local assets are not sufficient to pay all claims allowed in this State the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this State is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this State from assets in other jurisdictions.

    Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1216. Final distribution to domiciliary representative.

The estate of a nonresident decedent being administered by an executor or administrator appointed in this State shall, if there is an executor or administrator of the decedent's domicile willing to receive it, be distributed to the domiciliary executor or administrator for the benefit of the successors of the decedent unless:

  1. by virtue of the decedent's will, if any, and applicable choice of law rules, the heirs, devisees, and legatees are identified pursuant to the local law of this State without reference to the local law of the decedent's domicile;
  2. the executor or administrator of this State, after reasonable inquiry, is unaware of the existence or identity of a domiciliary executor or administrator; or
  3. the court orders otherwise in a proceeding for a final decree of distribution.  In other cases, distribution of the estate of a decedent shall be made in accordance with the other sections of the chapter.

    Added 1975, No. 240 (Adj. Sess.), § 7.

CHAPTER 67. PAYMENT OF DEBTS AND EXPENSES

Sec.

§§ 1251-1273. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1251, relating to sale of realty when personalty was insufficient for payment of debts, was derived from V.S. 1947, § 2984; P.L. § 2917; 1933, No. 157 , § 2074; G.L. § 3367; P.S. § 2888; V.S. § 2495; R.L. § 2182; G.S. 52, § 5; R.S. 48, § 5; 1821, p. 46; R. 1797, p. 224, § 31; R. 1787, p. 57.

Former § 1252, relating to payment of debts according to provisions in will, was derived from V.S. 1947, § 2985; P.L. § 2918; G.L. § 3368; P.S. § 2889; V.S. § 2496; R.L. § 2183; G.S. 49, §§ 30, 31; R.S. 45, §§ 30, 31.

Former § 1253, relating to legacies and devises liable for debt, was derived from V.S. 1947, § 2986; 1947, No. 202 , § 3009; P.L. § 2919; G.L. § 3369; P.S. § 2890; V.S. § 2497; R.L. § 2184; G.S. 49, § 32; R.S. 45, § 32.

Former § 1254, relating to executor retaining possession of an estate until settlement of liability, was derived from V.S. 1947, § 2987; P.L. § 2920; G.L. § 3370; P.S. § 2891; V.S. § 2498; R.L. § 2185; G.S. 49, § 33; R.S. 45, § 33.

Former § 1255, relating to contribution, was derived from V.S. 1947, § 2988; P.L. § 2921; G.L. § 3371; P.S. § 2892; V.S. § 2499; R.L. § 2186; G.S. 49, § 34; R.S. 45, § 34.

Former § 1256, relating to when a contributor was insolvent or dead, was derived from V.S. 1947, § 2989; P.L. § 2922; G.L. § 3372; P.S. § 2893; V.S. § 2500; R.L. § 2187; G.S. 49, § 35; R.S. 45, § 35.

Former § 1257, relating to authority of court to fix contributors' shares and other remedies of claimants, was derived from V.S. 1947, § 2990; P.L. § 2923; G.L. § 3373; P.S. § 2894; V.S. § 2501; R.L. § 2188; G.S. 49, § 36; R.S. 45, § 36.

Former § 1258, relating to perpetual care of burial lots, was derived from V.S. 1947, § 2991; P.L. § 2924; G.L. § 3374; 1912, No. 104 .

Former § 1259, relating to payment of debts in full if estate was sufficient, was derived from V.S. 1947, § 2992; P.L. § 2925; G.L. § 3375; P.S. § 2895; V.S. § 2502; R.L. § 2189; G.S. 53, § 33; R.S. 49, § 31.

Former § 1260, relating to order of payment of debts if estate was insolvent, was derived from 1955, No. 162 ; V.S. 1947, § 2993; 1943, No. 30 , § 1; 1935, S., No. 7, § 1; 1935, No. 57 ; P.L. § 2926; G.L. § 3376; 1912, No. 103 ; P.S. § 2896; 1904, No. 70 , § 1; V.S. § 2503; R.L. § 2190; G.S. 53, § 34; R.S. 49, § 32; 1821, pp. 46, 69; R. 1797, p. 249, § 82; R. 1787, pp. 57, 58, and amended by 1961, No. 87 ; 1963, No. 187 ; 1967, No. 147 , § 12; 1973, No. 75 . The subject matter is now covered by § 1205 of this title.

Former § 1261, relating to how creditors were to take if estate was insolvent, was derived from V.S. 1947, § 2994; P.L. § 2927; G.L. § 3377; P.S. § 2897; V.S. § 2504; R.L. § 2191; G.S. 53, § 35; R.S. 49, § 33; R. 1797, p. 254, § 88; R. 1787, p. 58.

Former § 1262, relating to estates of insolvent nonresidents, was derived from V.S. 1947, § 2995; P.L. § 2928; G.L. § 3378; P.S. § 2898; V.S. § 2505; R.L. § 2192; G.S. 53, § 36; 1851, No. 20 , § 1.

Former § 1263, relating to claims proved out of state against insolvent residents' estates and reciprocity, was derived from V.S. 1947, § 2996; P.L. § 2929; G.L. § 3379; P.S. § 2899; V.S. § 2506; R.L. § 2193; G.S. 53, § 37; 1851, No. 20 , § 2.

Former § 1264, relating to order for payment of claims, was derived from V.S. 1947, § 2997; P.L. § 2930; G.L. § 3380; P.S. § 2900; V.S. § 2507; R.L. § 2194; G.S. 53, § 38; R.S. 49, § 34; 1821, p. 68; R. 1797, p. 254, § 87.

Former § 1265, relating to suspension of order for payment pending appeal from commissioners, was derived from V.S. 1947, § 2998; P.L. § 2931; G.L. § 3381; P.S. § 2901; V.S. § 2508; R.L. § 2195; G.S. 53, § 39; R.S. 49, § 35.

Former § 1266, relating to payment of settled claims, was derived from V.S. 1947, § 2999; P.L. § 2932; G.L. § 3382; P.S. § 2902; V.S. § 2509; R.L. § 2196; G.S. 53, § 40; R.S. 49, § 36.

Former § 1267, relating to subsequent distributions, was derived from V.S. 1947, § 3000; P.L. § 2933; G.L. § 3383; P.S. § 2903; V.S. § 2510; R.L. § 2197; G.S. 53, § 41; R.S. 49, § 37; 1821, p. 69; R. 1797, p. 254, § 88.

Former § 1268, relating to personal liability of executors and administrators, was derived from V.S. 1947, § 3001; P.L. § 2934; G.L. § 3384; P.S. § 2904; V.S. § 2511; R.L. § 2198; G.S. 53, § 42; R.S. 49, § 38; 1821, p. 67; R. 1797, p. 253, § 86.

Former § 1269, relating to time for paying debts and legacies, was derived from V.S. 1947, § 3002; P.L. § 2935; G.L. § 3385; P.S. § 2905; V.S. § 2512; R.L. § 2199; G.S. 53, §§ 29, 30; R.S. 49, §§ 27, 28; 1834, No. 4 , § 6; 1821, pp. 47, 68; R. 1797, p. 248, § 81; R. 1797, p. 254, § 87.

Former § 1270, relating to hearing on application to extend time for paying debts and legacies, was derived from V.S. 1947, § 3003; P.L. § 2936; G.L. § 3386; P.S. § 2906; V.S. § 2513; R.L. § 2200; G.S. 53, § 31; R.S. 49, § 29; 1834, No. 4 , § 6; 1821, p. 47.

Former § 1271, relating to extension of time for paying debts and legacies when an executor or administrator died and a new administrator appointed, was derived from V.S. 1947, § 3004; P.L. § 2937; G.L. § 3387; P.S. § 2907; V.S. § 2514; R.L. § 2201; G.S. 53, § 32; R.S. 49, § 30.

Former § 1272, relating to publication of notice of time appointed or limited for payment of debts, was derived from V.S. 1947, § 3005; P.L. § 2938; G.L. § 3388; P.S. § 2908; V.S. § 2515; R.L. § 2202; G.S. 53, § 43; R.S. 49, § 39; 1821, p. 68; R. 1797, p. 254, § 87.

Former § 1273, relating to claims barred when not demanded within two years from the time limited for payment of debts, was derived from V.S. 1947, § 3006; P.L. § 2939; G.L. § 3389; P.S. § 2909; V.S. § 2516; R.L. § 2203; G.S. 53, § 44; R.S. 49, § 40; 1821, p. 68; R. 1797, p. 254, § 87.

CHAPTER 69. CONTINGENT CLAIMS

Sec.

§§ 1331-1341. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1331, relating to presentation of contingent claims to commissioners or the probate court, was derived from V.S. 1947, § 3007; P.L § 2940; G.L. § 3390; P.S. § 2910; V.S. § 2517; R.L. § 2204; G.S. 53, § 45; R.S. 49, § 41.

Former § 1332, relating to retention of estate to pay contingent claim, was derived from V.S. 1947, § 3008; 1947, No. 202 , § 3031; P.L. § 2941; G.L. § 3391; P.S. § 2911; V.S. § 2518; R.L. § 2205; G.S. 53, § 46; R.S. 49, § 42.

Former § 1333, relating to allowance of claims which become absolute within two years, was derived from V.S. 1947, § 3009; P.L. § 2942; G.L. § 3392; P.S. § 2912; V.S. § 2519; R.L. § 2206; G.S. 53, § 47; R.S. 49, § 43.

Former § 1334, relating to payment of contingent claims and distribution of assets, was derived from V.S. 1947, § 3010; P.L. § 2943; G.L. § 3393; P.S. § 2913; V.S. § 2520; R.L. § 2207; G.S. 53, § 48; R.S. 49, § 44.

Former § 1335, relating to presentation of claims which accrued after the time limited for creditors to present their claims, was derived from V.S. 1947, § 3011; P.L. § 2944; G.L. § 3394; P.S. § 2914; V.S. § 2521; R.L. § 2208; G.S. 53, § 49; R.S. 49, § 45.

Former § 1336, relating to liability when an executor or administrator did not have sufficient assets to pay the whole claim, was derived from V.S. 1947, § 3012; P.L. 2945; G.L. § 3395; P.S. § 2915; V.S. § 2522; R.L. § 2209; G.S. 53, §§ 50, 52; R.S. 49, §§ 46, 48; 1821, p. 59.

Former § 1337, relating to nonjoinder of parties liable under section 1336 of this title, was derived from V.S. 1947, § 3013; P.L. § 2946; G.L. § 3396; P.S. § 2916; V.S. § 2523; R.L. § 2210; G.S. 53, § 53; R.S. 49, § 49.

Former § 1338, relating to jury trial in cases of contested liability, was derived from V.S. 1947, § 3014; 1947, No. 202 , § 3037; P.L. § 2947; G.L. § 3397; P.S. § 2917; V.S. § 2524; R.L. § 2211; G.S. 53, § 54; R.S. 49, § 50, and amended by 1971, No. 185 (Adj. Sess.). § 236.

Former § 1339, relating to liability of estate of heir, was derived from V.S. 1947, § 3015; 1947, No. 202 , § 3038; P.L. § 2948; G.L. § 3398; P.S. § 2918; V.S. § 2525; R.L. § 2212; G.S. 53, § 55; R.S. 49, § 51.

Former § 1340, relating to remedy of their paying more than his share, was derived from V.S. 1947, § 3016; P.L. § 2949; G.L. § 3399; P.S. § 2919; V.S. § 2526; R.L. § 2213; G.S. 53, § 56; R.S. 49, § 52.

Former § 1341, relating to liability of executor or administrator, was derived from V.S. 1947, § 3017; P.L. § 2950; G.L. § 3400; P.S. § 2920; V.S. § 2527; R.L. § 2214; G.S. 53, § 51; R.S. 49, § 47; 1821, p. 59.

CHAPTER 71. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SURVIVAL OF CAUSES

SUBCHAPTER 3. WRONGFUL DEATH

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 1401. Executor or administrator may sue and defend.

An executor or administrator may commence, prosecute, or defend, in the right of the deceased, actions that survive to the executor or administrator and are necessary for the recovery and protection of the property or rights of the deceased and may prosecute or defend the actions commenced in the lifetime of the deceased.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2920. P.L. § 2853. G.L. § 3308. P.S. § 2833. V.S. § 2445. R.L. § 2132. G.S. 52, § 9. R.S. 48, § 9. 1821, p. 50. 1804, p. 96. R. 1797, p. 108, § 73. 1791, p. 3.

Revision note. Deleted "in law or equity" following "deceased, actions" to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "executor" and "actions".

Cross References

Cross references. Actions for accounting by and against executors and administrators, see § 4251 et seq. of Title 12.

Executor or administrator as real party in interest, see Rule 17, Vermont Rules of Civil Procedure.

Limitation of actions by and against executors and administrators, see §§ 557 and 558 of Title 12.

Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

Survival of actions, see § 1451 et seq. of this title.

ANNOTATIONS

Analysis

1. Action by sole heir barred.

No reason appearing why matter should not follow common course or regular administration, sole heir of intestate, though there were no creditors, could not maintain a bill in equity to reach the assets of decedent's estate; but suit must be brought by administrator. Mason v. Mason's Executors, 76 Vt. 287, 56 A. 1011 (1904).

2. Acquiescence of administrator as binding on minor.

Acquiescence of an administrator or guardian in a mistaken boundary line for true line did not bind heirs or wards while they remained minors. Burnell v. Malony, 36 Vt. 636 (1864).

3. Time as bar to action by administrator.

If administration upon estate of deceased person has been closed, and land surrendered to heirs, or if enough time has elapsed since death of intestate (in this case thirty years held to be sufficient) to show that lands are not required for purposes of administration, heirs or their grantees being in possession, cannot be disturbed by administrator. Cox v. Ingleston, 30 Vt. 258 (1858).

In ejectment against heir of an intestate where action was brought by administrator who was not appointed till sixteen years after intestate's death, and who did not show that there were any debts outstanding against estate, or that intestate left any other heirs than defendant, administrator could not recover. Roberts v. Morgan, 30 Vt. 319 (1858).

Where an administrator was appointed more than sixty years after death of his intestate, and sued in ejectment to recover lands which had descended to heirs of the intestate, under some of whom defendant took possession, administrator could not oust tenant claiming under heirs, nor be let into possession with them as tenant in common. Cushman v. Jordan, 13 Vt. 597 (1841).

4. Ejectment.

Administrator of the grantor, in a conditional deed, could maintain an action of ejectment, in his name as administrator, for a recovery of the premises upon a forfeiture of them on account of the nonperformance, by the grantees, of condition of deed. Austin v. Downer, 27 Vt. 636 (1855).

An administrator may maintain an action for the recovery of the possession of real estate, for the use of the heirs, until after a decree of distribution has been made by the probate court. McFarland v. Stone, 17 Vt. 165 (1845).

5. Pleading.

When an administrator entered to prosecute a suit brought by his intestate, question of survival could be aptly raised by a motion to dismiss. Noyes v. Village of Hyde Park, 73 Vt. 261, 50 A. 1068 (1901).

6. Liens.

Administratrix of estate of recipient of state aid had authority to prosecute appeal from decision of social welfare department which resulted in attachment of lien upon decedent's property. Willette v. Vermont Department of Social Welfare, 129 Vt. 270, 276 A.2d 608 (1971).

7. Action by ancillary administrator in Vermont.

A foreign administrator is without standing to prosecute the claim of his decedent unless authorized by ancillary letters issued in Vermont. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

Cited. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1402. Sum recovered paid to person entitled thereto.

When an executor or administrator commences or prosecutes an action founded on a debt, demand, or claim for damages, and is only a trustee of the claim for the use of another person, and where the claim, although prosecuted in the name of the executor or administrator, belongs to another person, the sum or property recovered shall not be assets in the hands of the executor or administrator, but shall be paid over to the person entitled to them, after deducting or being paid the costs and expenses of the prosecution.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2928. P.L. § 2861. G.L. § 3316. P.S. § 2841. V.S. § 2453. R.L. § 2140. G.S. 52, § 18. R.S. 48, § 14.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Under this section any moneys recovered by an administrator under section 1491 of this title are assets in his hands, not to pay debts of deceased, but only for distribution to those entitled thereto. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942), overruled on other grounds, Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357 (1989).

Provision of this section, to the effect that sum recovered for wrongful death in action by administrator shall not be asset in hands of administrator, means only that it shall not be asset subject to payment of decedent's debts. Beery v. Rutland Railroad, 103 Vt. 388, 154 A. 671 (1931).

2. Effect of final accounting and discharge of executor.

Order approving final account and discharging executor does not foreclose executor from taking such necessary legal steps as may be required under this section to collect and administer assets undisposed of by the decree of distribution. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

3. Effect of decree of distribution.

Under this section an executor who had executed deed of land could bring action for reformation of deed and recovery of money due notwithstanding decree of distribution had been issued in estate. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

§§ 1403-1409. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1403, relating to death of a coplaintiff or codefendant in a pending action, was derived from V.S. 1947, § 2929; P.L. § 2862; G.L. § 3317; P.S. § 2842; V.S. § 2454; R.L. § 2141; G.S. 52, § 19; R.S. 48, § 15; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4. The subject matter is now covered by Rule 25(a), Vermont Rules of Civil Procedure.

Former § 1404, relating to death of all plaintiffs or defendants in a pending action, was derived from V.S. 1947, § 2930; P.L. § 2863; G.L. § 3318; P.S. § 2843; V.S. § 2455; R.L. § 2142; G.S. 52, § 20; R.S. 48, § 16. The subject matter is now covered by Rule 25(a), Vermont Rules of Civil Procedure.

Former § 1405, relating to death of a sole plaintiff or defendant in a pending action, was derived from V.S. 1947, § 2931; 1947, No. 202 , § 2954; P.L. § 2864; G.L. § 3319; P.S. § 2844; V.S. § 2456; R.L. § 2143; G.S. 52, § 21; 1846, No. 39 ; R.S. 48, § 17; 1821, p. 52; 1804, p. 96; R. 1797, p. 108, § 73; 1791, p. 3. The subject matter is now covered by Rule 17(a), Vermont Rules of Civil Procedure.

Former § 1406, relating to application of section 1405 of this title to actions upon official bonds, was derived from V.S. 1947, § 2932; P.L. § 2865; G.L. § 3320; P.S. § 2845; V.S. § 2457; R.L. § 2143; G.S. 52, § 21; 1846, No. 39 ; R.S. 48, § 17; 1821, p. 52; 1804, p. 96; R. 1797, p. 108, § 73; 1791, p. 3.

Former § 1407, relating to citation of executor or administrator to appear and defend or prosecute a pending action, was derived from V.S. 1947, § 2933; P.L. § 2866; G.L. § 3321; P.S. § 2846; V.S. § 2458; R.L. § 2144; G.S. 52, § 22; R.S. 48, § 18; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4.

Former § 1408, relating to nonsuit or default when an executor or administrator neglected to become a party, was derived from V.S. 1947, § 2934; P.L. § 2867; G.L. § 3322; P.S. § 2847; V.S. § 2459; R.L. § 2145; G.S. 52, § 23; R.S. 48, § 19; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4.

Former § 1409, relating to continuance of actions pending appointment of an executor or administrator, was derived from V.S. 1947, § 2935; 1947, No. 202 , § 2958; P.L. § 2868; G.L. § 3323; P.S. § 2848; V.S. § 2460; 1890, No. 27 ; R.L. § 2146; G.S. 52, § 24; R.S. 48, § 20; 1821, p. 52; R. 1797, p. 108, § 73; R. 1797, p. 236, § 59; 1791, p. 4.

§ 1410. Representative may compromise claims of the estate.

With the approval of the Probate Division of the Superior Court, an executor or administrator may compromise with a debtor of the deceased for a debt due and may give a discharge of the debt on receiving payment of the compromised amount.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2936. P.L. § 2869. G.L. § 3324. P.S. § 2849. V.S. § 2461. R.L. § 2147. G.S. 52, § 26. R.S. 48, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Subsequent actions.

Compromise by administrator, with approval of probate court, of a suit brought by creditors of decedent to set aside certain mortgages executed by decedent, does not bar a subsequent suit by heirs of decedent against same defendant involving transfers of other property by decedent. Marsh v. Marsh, 78 Vt. 399, 63 A. 159 (1906).

§ 1411. Disputed claim may be referred.

When there is a disputed claim between an executor or administrator on behalf of the estate and another person, it may be referred to a master as provided by the Rules of Probate Procedure. The award, made in writing and returned to and accepted by the court, shall be final between the parties.

Amended 1985, No. 144 (Adj. Sess.), § 64; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2937. P.L. § 2870. G.L. § 3325. P.L. § 2850. V.S. § 2462. R.L. § 2148. G.S. 48, § 39. R.S. 44, § 37. 1821, p. 55. R. 1797, p. 253, § 85.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Cross References

Cross references. Masters, see Rule 53, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Discretion of court.

Probate court was not restricted to any particular class of "disputed claims" in ordering a reference. Noyes v. Phillips, 57 Vt. 229 (1884).

Court could appoint whom it pleased as referee. Noyes v. Phillips, 57 Vt. 229 (1884).

2. Submission.

Reference was not an arbitration proper, and no formal submission was required. Noyes v. Phillips, 57 Vt. 229 (1884).

3. Procedure not exclusive.

Arbitration procedure provided by this section and section 1412 of this title, concerning issues between an executor and estate he represents, is not exclusive; such matters may also be determined in other actions wherein issues between such parties arise. In re Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940).

§ 1412. Claim between executor and estate.

When a claim exists between an executor or administrator and the estate, a special administrator may be appointed solely for the purpose of acting upon that claim.

Amended 1985, No. 144 (Adj. Sess.), § 65.

History

Source. V.S. 1947, § 2938. P.L. § 2871. G.L. § 3326. P.S. § 2851. V.S. § 2463. R.L. § 2149. G.S. 48, § 40. R.S. 44, § 38. 1834, No. 4 , § 3.

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Enforcement of award.

Action of assumpsit will lie upon an award in favor of one of the heirs against the administrator, personally, when they had regularly submitted their differences to arbitration. Powers v. Douglass, 53 Vt. 471 (1881).

2. Revocation of order.

Probate court could revoke order of reference (while the same was pending) of an alleged claim existing between an administrator and others on petition of one not a party to reference, and against consent of parties, upon proof of facts which might render further proceedings before referees fraudulent and injurious to right of persons interested in claim referred, and denial of probate court upon such petition could be appealed from, whether petitioner was a party to reference or not. Lathrop v. Hitchcock, 38 Vt. 496 (1866).

3. Procedure not exclusive.

Arbitration procedure provided by this section and section 1411 of this title, concerning issues between an executor and estate he represents, is not exclusive; such matters may also be determined in other actions wherein issues between such parties arise. In re Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940).

§ 1413. Debt as personalty; representative may foreclose mortgage.

A debt secured by mortgage belonging to the estate of a deceased person as mortgagee or assignee of the right of a mortgagee, when the mortgage was not foreclosed in the lifetime of the deceased, shall be personal assets in the hands of the executor or administrator and administered and accounted for as such. The executor or administrator may foreclose the mortgage and take possession of the mortgaged premises as the decedent might have done in the decedent's lifetime.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2939. 1947, No. 202 , § 2962. P.L. § 2872. G.L. § 3327. P.S. § 2852. V.S. § 2464. R.L. § 2150. G.S. 52, § 27. R.S. 48, § 23.

Revision note. Substituted a semicolon for " - " in the section heading to conform to V.S.A. style.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "mortgage was not foreclosed" in the first sentence, and "decedent" for "mortgage or assignee" preceding "might" and "the decedent's" for "his" preceding "lifetime" in the second sentence.

ANNOTATIONS

Analysis

1. Interest in mortgaged premises as assets of estate.

Upon death of mortgagee before foreclosure, his right and interest in mortgaged premises vested in his executor or administrator, to be administered as assets belonging to estate. Pierce v. Brown, 24 Vt. 165 (1852).

2. Authority to discharge or assign mortgage.

Administrator upon estate of a mortgagee could without any order from probate court discharge mortgage, or assign interest of estate in mortgaged premises. Collamer v. Langdon, 29 Vt. 32 (1856).

3. Foreclosure.

Administrator could foreclose a mortgage in favor of his intestate. Herrick's Administrator v. Teachout, 74 Vt. 196, 52 A. 432 (1902).

§§ 1414, 1415. Repealed. 2017, No. 195 (Adj. Sess.), § 7.

History

Former §§ 1414, 1415. Former § 1414, relating to equity of redemption to be held in trust, was derived from V.S. 1947, § 2940; 1947, No. 202 , § 2963; P.L. § 2873; G.L. § 3328; P.S. § 2853; V.S. § 2465; R.L. § 2151; G.S. 52, § 28; R.S. 48, § 24.

Former § 1415, relating to disposal of lands held under mortgage or taken on execution, was derived from V.S. 1947, § 2940; 1947, No. 202 , § 2963; P.L. § 2873; G.L. § 3328; P.S. § 2853; V.S. § 2465; R.L. § 2151; G.S. 52, § 28; R.S. 48, § 24.

§ 1416. Estate not sued when masters appointed; exceptions.

Nothing in this chapter shall authorize a claimant to commence or prosecute an action against an executor or administrator where a master is appointed in the proceeding, nor where a time is allowed by an order of the Probate Division of the Superior Court for the executor or administrator to pay the debts against the deceased. Such an action shall not be commenced or prosecuted except as provided by law for that purpose.

Amended 1985, No. 144 (Adj. Sess.), § 67; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2942. P.L. § 2875. G.L. § 3330. P.S. § 2855. V.S. § 2467. R.L. § 2154. G.S. 52, § 25. G.S. 53, § 57. R.S. 48, § 21. R.S. 49, § 54. 1821, p. 67.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "masters" for "commissioners" in the section heading and "a master is" for "commissioners are" preceding "appointed" and "in the proceeding" for "on the estate" thereafter and made other minor stylistic changes in the text of the section.

Cross References

Cross references. Masters, see Rule 53, Vermont Rules of Probate Procedure.

ANNOTATIONS

Cited. Powers v. Powers' Estate, 57 Vt. 49 (1885).

§ 1417. Prosecution of action.

A person having a contingent or other claim against a deceased person may prosecute the claim against the executor, administrator, heirs, devisees, or legatees. An action commenced against the deceased before death may be prosecuted to final judgment. A claimant having a lien on the real or personal estate of the deceased, by attachment previous to death, on obtaining judgment, may have execution against the real or personal estate.

Amended 1985, No. 144 (Adj. Sess.), § 68; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2943. P.L. § 2876. G.L. § 3331. P.S. § 2856. V.S. § 2468. R.L. § 2155. G.S. 53, § 57. R.S. 49, §§ 53, 54. 1821, pp. 49, 51, 67. R. 1797, p. 235, §§ 56, 57, 58.

Amendments--2017 (Adj. Sess.). Substituted "claim" for "same" following "prosecute the" in the first sentence, deleted "in such case" preceding "an action" in the second sentence, and substituted "the" for "such" preceding "real or personal" in the last sentence.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence and deleted "his" preceding "death" in the second and third sentences.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Construction.

Provisions of 14 V.S.A. § 1417 did not direct survival of claims alleging violation of Act 250 and Consumer Fraud Act, where history of section indicated it was procedural, not substantive, and literal reading would render superfluous the specific statutes on survival of actions. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

2. Suits not authorized by section.

This section did not authorize prosecution of a claim barred by proceedings in probate court, nor of a claim against executor or administrator who had fully administered upon estate, not against heirs, devisees or legatees who had received no part of real or personal estate of deceased. Boyden v. Ward, 38 Vt. 628 (1866).

§ 1418. Repealed. 2017, No. 195 (Adj. Sess.), § 7.

History

Former § 1418. Former § 1418, relating to costs not to be taxed against state, was derived from V.S. 1947, § 2944; P.L. § 2877; G.L. § 3332; P.S. § 2857; V.S. § 2469; R.L. § 2156; G.S. 54, § 13; R.S. 50, § 12; 1821, p. 51.

ANNOTATIONS

Analysis

1. Purpose.

Executors and administrators are placed upon the same ground with other suitors, as it respects their liability for costs, which may be adjudged against them. O'Hear v. Skeeles, 22 Vt. 152 (1850).

2. Costs against administrator personally.

Where a creditor of an estate appealed from a decision of commissioners allowing a balance against him in favor of estate, and in the county court he recovered judgment in his favor for damages and costs, execution for costs was properly issued by county court against administrator personally, as for his own debt. O'Hear v. Skeeles, 22 Vt. 152 (1850).

Subchapter 2. Survival of Causes

ANNOTATIONS

Analysis

1. Generally.

Survival statutes allow a decedent's estate to recover for injuries sustained by decedent prior to his or her death, and death need not result from the injury, as with wrongful death actions. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

2. Construction with other laws.

Survival statutes were not applicable in action brought by decedent's parents and administrator under Dram Shop Act (DSA) because DSA had its own survival provision, although court would look to interpretations of survival statutes for guidance in construing DSA survival provision. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

3. Scope of recovery.

Survival statutes only allow recovery for loss and suffering endured by decedent prior to death; damages for loss of future earnings are not available, and same interpretation should be accorded survival provision contained in Dram Shop Act. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

§ 1451. What actions survive.

Actions of ejectment or other proper actions to recover the seisin or possession of lands, tenements, or hereditaments, actions of replevin, actions on tort on account of the wrongful conversion of personal estate, and actions on tort on account of a trespass or for damages done to real or personal estate shall survive, in addition to the actions that survive by common law, and may be commenced and prosecuted by the executor or administrator.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2921. P.L. § 2854. G.L. § 3309. P.S. § 2834. V.S. § 2446. R.L. § 2133. G.S. 52, § 10. R.S. 48, § 10. 1821, p. 53. R. 1797, p. 239, §§ 65, 66.

Amendments--2017 (Adj. Sess.). Substituted "on" for "of" preceding "tort" in two places.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Law governing.

Whether claim for mesne profits, after judgment for plaintiff in ejectment, survives depends on law of state where land lies. Burgess v. Gates, 20 Vt. 326 (1848).

2. Personal estate.

A breach of fiduciary duty claim constitutes a claim for damages done to personal estate and survives the plaintiff's death. Accordingly, an estate had standing to bring a breach of fiduciary duty claim against the decedent's niece. Estate of Kuhling v. Glaze, 208 Vt. 273, 196 A.3d 1125 (2018).

Right of father to services of his daughter was not personal estate within meaning of section; the phrase "personal estate" had reference to specific personal property. Davis v. Carpenter, 72 Vt. 259, 47 A. 778 (1900).

3. Particular actions .

A claim for workers' compensation survived the death of a claimant who had no dependents because it was based on a contract right and was an asset of the estate, as with any other debt. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

When the basis of an audita querela is altogether personal it will die with the person. Connecticut & Pas. Rivers Railroad v. Administrator of Bliss, 24 Vt. 411 (1852).

*4. Bastardy.

Right of mother of illegitimate child to prosecute putative father under section 331 et seq. of Title 15 died with her. Rollins v. Chalmers, 49 Vt. 515 (1877).

*5. Fraud.

An action for fraud in sale of shares of stock did not survive under this section. Jones v. Estate of Ellis, 68 Vt. 544, 35 A. 488 (1896).

*6. Mesne profits.

Claim for mesne profits after judgment in favor of plaintiff in ejectment survived. Burgess v. Gates, 20 Vt. 326 (1848).

*7. Seduction of daughter.

An action brought by a father for seduction of his minor daughter did not survive at common law nor by statute. Davis v. Carpenter, 72 Vt. 259, 47 A. 778 (1900).

*8. Transporting pauper without order.

An action upon statute for transporting a pauper from one town in this state to another town in this state, or aiding therein, without an order of removal, with intent to charge such town with the support of such pauper, did not survive. Town of Winhall v. Estate of Sawyer, 45 Vt. 466 (1873).

*9. Trespass against sheriff.

Action of trespass on the case against a sheriff, for default of his deputy, in not paying to plaintiff money collected by deputy upon an execution in favor of plaintiff against a third person, would survive. Bellows v. Administrator of Allen, 22 Vt. 108 (1849).

An action of trespass on the case against a sheriff for default of his deputy in not keeping property attached upon mesne process and not delivering it to officer holding execution obtained in suit would survive. Dana v. Lull, 21 Vt. 383 (1849).

An action of trespass on the case against a sheriff for a false return upon process did not survive to administrator of plaintiff. Administrator of Barrett v. Copeland, 20 Vt. 244 (1848).

Cited. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1452. When actions for personal injury survive.

In an action for the recovery of damages for a bodily hurt or injury, occasioned to the plaintiff by the act or default of the defendant or defendants, if either party dies during the pendency of the action, the action shall survive and may be prosecuted to final judgment by or against the executors or administrators of the deceased party. When there are several defendants in the action, and one or more, but not all, die, it shall be prosecuted against the surviving defendant or defendants, and against the estate of the deceased defendant or defendants.

Amended 1977, No. 120 (Adj. Sess.), § 1, eff. Feb. 9, 1978; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2922. P.L. § 2855. G.L. § 3310. P.S. § 2835. V.S. § 2447. R.L. § 2134. G.S. 52, § 11. 1847, No. 42 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "action" in two places and preceding "deceased".

Amendments--1977 (Adj. Sess.). Substituted "and against the estate of the deceased defendant or defendants" for "only" at the end of the second sentence.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Purpose.

Plain intent of this section was to make all actions survive where the cause of action was for a physical injury to person, caused in any unlawful manner. Administrator of Whitcomb v. Cook, 38 Vt. 477 (1866).

2. Construction.

This section has reference to survival of an action pending at time of death of a party, as distinguished from the survival of cause of action on which suit is based. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

3. Causes of action.

An action to recover damages for an unlawful arrest and imprisonment survived death of party injured, it being regarded as an action to recover damages for a bodily hurt or injury. Administrator of Whitcomb v. Cook, 38 Vt. 477 (1866).

Where death occurs, two causes of action may arise, one in favor of decedent for his loss and suffering resulting from injury in his lifetime, the other founded on his death or on damages resulting from his death to his widow and next of kin, and both actions are to be prosecuted in point of form in name of his personal representative, but damages in the two suits are given upon entirely different principles, and for different purposes. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

4. Limitation of actions.

Survival action brought for bodily hurt pursuant to this section and section 1453 of this title must be brought within two years from date of issuance of letters of administration as required by section 557 of Title 12. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

5. Death of plaintiff.

Action in name of husband and wife, for injuries to wife, survived to her administrator. Earl v. Tupper, 45 Vt. 275 (1873).

6. Death of defendant.

Action to recover damages for alleged malpractice commenced against two defendants, one of whom has died during the pendency thereof, cannot be prosecuted against executor of deceased defendant, but, when his death is suggested on record, the case stands in legal contemplation as a suit against surviving defendant alone. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

7. Prior actions.

A former recovery by the father for loss of service, etc., of his minor son, consequent on bodily injuries occasioned by defendant, is no bar to a recovery by father as administrator of son, of such damages as son himself might have recovered; and herein he may recover exemplary damages. Bradley v. Andrews, 51 Vt. 525 (1879).

Cited. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1453. Survival of causes of action.

The causes of action mentioned in sections 1451 and 1452 of this title shall survive. Actions based thereon may be commenced and prosecuted by or against the executor or administrator. When the actions are commenced in the lifetime of the deceased, after death the same may be prosecuted by or against the executor or administrator where by law that mode of prosecution is authorized.

Amended 1985, No. 144 (Adj. Sess.), § 69; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2923. 1947, No. 202 , § 2946. P.L. § 2856. G.L. § 3311. P.S. § 2836. V.S. § 2448. R.L. § 2135. G.S. 52, § 12. 1847, No. 42 , § 2. R.S. 48, § 12. 1821, p. 53. R. 1797, p. 239, §§ 65, 66.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "actions".

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "death" in the third sentence and deleted the former fourth sentence.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Wrongful death act, sections 1491 and 1492 of this title, does not create a new cause of action, it merely creates a new right of recovery which attaches to the right of action arising from the original wrong, engrafting a new element of damages upon the right of action surviving by virtue of this section. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

This section did not conflict with section 1452 of this title and did not permit plaintiff in an action to recover damages for alleged malpractice against two defendants, one of whom had died during pendency of suit, to revive action against executor of deceased defendant by citing him in to defend. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

2. Causes of action.

Cause of action for bodily injury rested upon tortious injuries received prior to death, not the existence of beneficiaries of the estate, and it was error to grant summary judgment in such an action on the ground that it was pointless to allow maintenance of the action because there were no beneficiaries to recover and thus any proceeds of the suit would escheat to the town of decedent's inhabitance. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

3. Limitation of actions.

Survival action brought for bodily hurt pursuant to this section and section 1452 of this title must be brought within two years from date of issuance of letters of administration, as required by section 557 of Title 12. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

4. Damages.

The damages necessary to sustain a negligence claim under this section are the damages suffered by the decedent at and after the injury and prior to death. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Cited. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990); Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1454. Trespass; damages.

In an action on tort on account of a trespass commenced or prosecuted against an executor or administrator, the plaintiff or claimant shall recover for the value of the goods taken, or the actual damage, and not vindictive or exemplary damages.

Amended 1985, No. 144 (Adj. Sess.), § 70; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2924. P.L. § 2857. G.L. § 3312. P.S. § 2837. V.S. § 2449. R.L. § 2136. G.S. 52, § 13. R.S. 48, § 13.

Amendments--2017 (Adj. Sess.). Substituted "on" for "of" preceding "tort".

Amendments--1985 (Adj. Sess.). Deleted "or where a claim for a trespass is presented and prosecuted before the commissioners" following "administrator".

§ 1455. Heir may not sue until share assigned.

When an executor or administrator is appointed and assumes the trust, an action of ejectment, or other action to recover the seisin or possession of lands, or for damage done to the lands, shall not be maintained by an heir or devisee until there is a decree of the Probate Division of the Superior Court assigning the lands to the heir or devisee, or the time allowed for paying debts has expired, unless the executor or administrator surrenders the possession to the heir or devisee.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2925. P.L. § 2858. G.L. § 3313. P.S. § 2838. V.S. § 2450. R.L. § 2137. G.S. 52, § 14. R.S. 48, § 11. 1821, p. 53.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "lands" and "heir" in two places.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Presumption of discharge of administrator's lien.

Devisee of land may maintain ejectment therefor when it is obvious that no action of the probate court, in ordering a division, or assigning the land, can become necessary, and there is no pretense that the executor has any lien upon the land, or so long a time has elapsed that his lien will be presumed satisfied. Abbott v. Pratt, 16 Vt. 626 (1844).

Grantee of an heir holds land, as heir did, subject to administrator's lien; but, even in a case where it is shown that administration was granted upon estate, it will be presumed, after lapse of nine years without any interference of administrator, that his lien has been satisfied, especially when party denying the right of the heir's grantee is a stranger to the title. Cushman v. Jordan, 13 Vt. 597 (1841); Roberts v. Morgan, 30 Vt. 319 (1858); Austin v. Bailey, 37 Vt. 219 (1864).

An heir, as such, cannot before a division, maintain ejectment or trespass quare clausum fregit, where he has had no possession; yet, all heirs conveying to plaintiff by deed, and two years elapsing, without any interference of administrator, are sufficient to presume administrator's lien upon the land satisfied, as against defendant, who appears a stranger to all title. Hubbard v. Ricart, 3 Vt. 207 (1831).

2. Discharge of lien by performance of duties.

When an administrator has performed all the duties by reason of which a lien is given him on the intestate property, that lien is discharged, and the heirs hold the estate acquit of him and his lien. Coolidge v. Taylor, 85 Vt. 39, 80 A. 1038 (1911).

3. Surrender of possession to heir.

Mere fact that plaintiff is administrator of a decedent's estate does not show that plaintiff has the right to maintain trespass on the freehold for injuries to real property of which decedent died seized, committed after his death, for plaintiff, notwithstanding the lien on real property which an administrator may assert in connection with settlement of an estate, may have surrendered possession to heir before decree of distribution, and before expiration of time for paying debts, as this section recognizes that he may. Plumley's Administrator v. Plumley, 84 Vt. 286, 79 A. 45 (1911).

4. Ejectment by heirs where no administrator appointed.

If no administrator is appointed upon estate of a deceased person, his heirs may maintain ejectment, to recover land to which he had title, without an order of distribution being made by the probate court. Buck v. Squiers, 22 Vt. 484 (1850).

Cited. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

Subchapter 3. Wrongful Death

Cross References

Cross references. Disavowal of agreement adversely affecting right to compensation for death, see § 1076 of Title 12.

ANNOTATIONS

Analysis

1. Construction.

This subchapter is remedial in nature, designed to allay harsh common law rule denying liability due to death of victim, and must be construed liberally. State v. Oliver, 151 Vt. 626, 563 A.2d 1002 (1989).

Because this subchapter was designed to allay harsh common law rule denying liability due to death of victim, it is remedial in nature and must be construed liberally. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

This subchapter does not create a new cause of action, but rather a new right of recovery or new element of damages engrafted upon the existing cause of action. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

This subchapter is remedial, is designed to alleviate the harsh common law rule of no liability because the person injured had died, and as such must be given liberal construction: whether or not it is in derogation of the common law, it is clearly designed to remedy an inequity in the common law and fill a void repugnant to general equitable principles. Vailancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980).

2. Construction with other laws.

This subchapter does not create a new cause of action, it merely creates a new right of recovery which attaches to the right of action arising from the original wrong, engrafting a new element of damages upon the right of action surviving by virtue of section 1453 of this title, providing that a cause of action for bodily injury survives the death of the victim. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Death statute did not apply where injury which caused death was inflicted in another state though upon a citizen of this state who was brought here before death. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

History

Law review commentaries

Law review. For article, "Parents 'Pecuniary Injuries' for the Wrongful Death of an Adult Child: Where is the Love?," see 12 Vt. L. Rev. 57 (1987).

§ 1491. Right of action where death results from wrongful act.

When the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, the person or corporation liable to such action shall be liable to an action for damages, notwithstanding the death of the person injured and although the death is caused under such circumstances as amount in law to a felony.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2926. P.L. § 2859. G.L. § 3314. P.S. § 2839. V.S. § 2451. 1892, No. 80 , § 58. 1884, No. 76 . R.L. § 2138. G.S. 52, § 15. 1849, No. 8 , § 1.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

ANNOTATIONS

Analysis

1. Applicability.

On appeal, plaintiffs acknowledged that a dog was personal property and as such, their loss of companionship claim for the intentional killing of their pet dog did not fall within the ambit of the wrongful death statute. Scheele v. Dustin, 188 Vt. 36, 998 A.2d 697 (2010).

To the extent that cat owners asked for an extension of the Wrongful Death Act to pets, in an area of law created entirely through statutory enactment, the court was hesitant to create rights where the legislature chose not to do so. Goodby v. Vetpharm, Inc., 186 Vt. 63, 974 A.2d 1269 (2009).

2. Purpose.

Right of action given by this section is not related to any rights of the deceased in his lifetime, but is for the designated beneficiaries to compensate them for the loss sustained by them. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

3. Cause of action derived from deceased.

Vermont's wrongful death statute does not create a new type of legal claim - it simply gives a right of recovery to a decedent's estate based on the injury to the deceased, 14 V.S.A. § 1491 - the decedent's estate must still allege and prove a traditional claim for injury - in state tort law or otherwise - in order to recover. Fortunati v. Campagne, - F. Supp. 2d - (D. Vt. Dec. 29, 2009).

Right of action given by this section arises from injury to deceased, which, if he had survived, would have given him a cause of action. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

This section does not give a new right of action, but a new right of recovery, not existing at common law, arising from the injury to the deceased which gave or would have given him a right of action if death had not ensued. Berry v. Rutland Railroad, 103 Vt. 388, 154 A. 671 (1931).

Where intestate, if death had not ensued, would have had no right of action for defendant's negligence, his personal representative can have none, for the benefit of next of kin. Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45 (1905).

This section does not create a new and additional cause of action, but provides for recovery of a new class of damages in case a right of action would have existed in the deceased person if living. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

If right of action is extinguished in lifetime of injured person, as by a settlement or recovery, no further recovery can be had after his death. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

4. Former recovery.

Where injured person began suit in his lifetime, which his administrator prosecuted to judgment after his death, such judgment would bar a second suit for benefit of widow, although damages awarded in the first suit were solely for the injuries to deceased person in his lifetime. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

5. Time of death.

To entitle the administrator to maintain action it was not necessary that death should have resulted instantly from injury complained of. Boyden v. Fitchburg Railroad, 70 Vt. 125, 39 A. 771 (1897).

6. Death of fetus.

A viable fetus is a "person" within meaning of section 1492 of this title and this section, even though the viable fetus is later stillborn, and a right of recovery exists for negligently causing the wrongful death of a full term viable fetus which is stillborn. Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980).

7. Death of wrongdoer.

Right given by this section survived death of wrongdoer, since it was not a new cause of action but a new right of recovery, and therefore administrator of wronged decedent could present claim to commissioners of estate of wrongdoer. Desautel's Administrator v. Mercure's Estate, 104 Vt. 211, 158 A. 682 (1932).

8. Contracts in avoidance of future liability.

Contract by which railroad company seeks to relieve itself from liability for future negligence, made with next of kin of employee with view to liability under this section, is against public policy and void. Tarbell v. Rutland Railroad, 73 Vt. 347, 51 A. 6 (1901).

9. Dram shop liability.

This section provides a remedy when death is caused "by the wrongful act, neglect or default" of another, and acts which trigger dram shop liability clearly fit within broad scope of term "wrongful act." Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Cited. Fay v. Kent, 55 Vt. 557 (1883); Westcott v. Central Vermont Railroad, 61 Vt. 438, 17 A. 745 (1889); Lazelle v. Town of Newfane, 70 Vt. 440, 41 A. 511 (1898); Wetherby's Administrator v. Twin State Gas Co., 83 Vt. 189, 75 A. 8 (1910); Woodcock's Administrator v. Hallock, 98 Vt. 284, 127 A. 380 (1925); Goodwin v. Gaston, 103 Vt. 357, 154 A. 772 (1931); Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980); Hay v. Medical Center Hospital, 145 Vt. 533, 496 A.2d 939 (1985); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990); Bacon v. Lascelles, 165 Vt. 214, 678 A.2d 902 (1996); Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

§ 1492. Action for death from wrongful act; procedure; damages.

  1. The action shall be brought in the name of the personal representative of the deceased person and commenced within two years from the discovery of the death of the person, but if the person against whom the action accrues is out of the State, the action may be commenced within two years after the person comes into the State. After the cause of action accrues and before the two years have run, if the person against whom it accrues is absent from and resides out of the State and has no known property within the State that can by common process of law be attached, the time of his or her absence shall not be taken as part of the time limited for the commencement of the action. If the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become final, whichever occurs later.
  2. The court or jury before whom the issue is tried may give such damages as are just, with reference to the pecuniary injuries resulting from the death, to the spouse and next of kin, as the case may be. In the case where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship in an amount as under all the circumstances of the case, may be just.
  3. The amount recovered shall be for the benefit of the spouse and next of kin, as the case may be and shall be distributed by the personal representative as hereinafter provided. The distribution, whether of the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries suffered, the proportions to be determined upon notice to all interested persons in such manner as the Superior Court, or in the event the court is not in session a Superior judge, shall deem proper and after a hearing at such time as the court or judge may direct, upon application made by the personal representative or by the spouse or any next of kin. The distribution of the proceeds of a settlement or action shall be subject to the following provisions:
    1. In case the decedent shall have left a spouse surviving, but no children, the damages recovered shall be for the sole benefit of the spouse.
    2. In case the decedent leaves neither spouse nor children, but leaves a mother and leaves a father who has abandoned the decedent or has left the maintenance and support of the decedent to the mother, the damages or recovery shall be for the sole benefit of the mother.
    3. In case the decedent leaves neither spouse nor children, but leaves a father and leaves a mother who has abandoned the decedent or has left the maintenance and support of the decedent to the father, the damages or recovery shall be for the sole benefit of the father.
    4. No share of the damages or recovery shall be allowed in the estate of a child to a parent who has neglected or refused to provide for the child during infancy or who has abandoned the child whether or not the child dies during infancy, unless the parental duties have been subsequently and continuously resumed until the death of the child.
    5. No share of the damages or recovery shall be allowed in the estate of a deceased spouse to his or her surviving spouse who has abandoned the decedent or who has persistently neglected to support the decedent prior to the decedent's death.
    6. The Superior Court shall have jurisdiction to determine the questions of abandonment and failure to support under subdivisions (2), (3), (4), and (5) of this subsection and the Probate Division of the Superior Court having jurisdiction of the decedent's estate shall decree the net amount recovered pursuant to the final judgment order of the Superior Court.
  4. A party may appeal from the findings and decision rendered pursuant to subsection (c) of this section as in causes tried by a court.
  5. Notwithstanding subsection (a) of this section, if the death of the decedent was caused by an intentional act constituting murder, the action may be commenced within seven years after the discovery of the death of the decedent.

    Amended 1961, No. 250 , eff. July 28, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1975, No. 223 (Adj. Sess.), § 1, eff. April 7, 1976; 1995, No. 114 (Adj. Sess.), §§ 1, 2; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2927. P.L. § 2860. 1919, No. 85 . G.L. § 3315. 1915, No. 97 . P.S. § 2840. V.S. § 2452. 1892, No. 80 , § 58. 1884, No. 76 . R.L. § 2139. G.S. 52, §§ 16, 17. 1849, No. 8 , §§ 2, 3.

2002. Substituted "subsection" for "section" in subdiv. (c)(6) to conform subdivision to V.S.A. style.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (c)(6): Substituted "probate division of the superior court" for "probate court."

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "the discovery of the death of the person" for "his decease" following "two years from" in the first sentence, made minor changes in phraseology in the second sentence, and added the third sentence.

Subsec. (e): Added.

Amendments--1975 (Adj. Sess.). Subsec. (b): Added the second sentence.

Amendments--1973 (Adj. Sess.). Subsec. (c); Substituted "superior" for "county" preceding "court" in the second sentence and in subdiv. (6).

Amendments--1961. Subsec. (c): Amended generally.

Subsec. (d): Added.

Applicability--1975 (Adj. Sess.) amendment. 1975, No. 223 (Adj. Sess.), § 2, provided that the amendment to subsec. (b) of this section would apply to any and all actions or claims pending on April 7, 1976.

Cross References

Cross references. Comparative negligence, see § 1036 of Title 12.

ANNOTATIONS

Analysis

1. Constitutionality.

Plaintiffs were not denied equal protection because they could not recover for the wrongful death of their son, whereas parents of an adult child who dies without a surviving child are entitled to recovery. Limiting defendants' liability to one class of persons prevents the possibility of diluting the recovery. Limiting damages also correlates the wrongful death action to probate proceedings, as "next of kin" carries the same meaning in both laws, and as allowing damages for loss to other persons creates more opportunity for conflict between survivors, complicating and prolonging the proceedings as well as adding to their cost. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Denying plaintiffs, parents of a deceased who died with a surviving wife and child, wrongful death damages was not violative of Vt. Const. ch. I, art. 4. This article does not create substantive rights; it merely provides access to the courts. There was no statutory or common-law cause of action for plaintiffs' injuries resulting from their son's death. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

2. Construction with other laws.

Because, under the Wrongful Death Act, damages are based on the loss suffered by the statutory beneficiaries, the spouse and the next of kin, these beneficiaries may not disclaim their status, in favor of the decedent's parents, by executing a disclaimer pursuant to the Uniform Disclaimer of Property Interests Act. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Where parties to wrongful death action reached a settlement which provided benefits for deceased's minor child, court did not have authority under section 2643 of this title, requiring approval of release on behalf of a minor, to reject the settlement and compel the parties to go to trial, since the wrongful death claim belonged to deceased's estate and there was no cause of action of a minor subject to release, a prerequisite for operation of section 2643. Estate of Tilton v. Lamoille Superior Court, 148 Vt. 213, 531 A.2d 919 (1987).

Where death occurs, two causes of action may arise, one in favor of the decedent for his loss and suffering resulting from the injury in his lifetime, the other founded on his death, or on the damages resulting from his death to his widow and next of kin, and both actions are to be prosecuted in point of form in the name of his personal representative, but the damages in the two suits are given upon entirely different principles, and for different purposes. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

3. Action by ancillary administrator.

Under 14 V.S.A. § 1492(a), a wrongful death action shall be brought within two years of death by the personal representative, not by the beneficiary of the estate, and the minority of the beneficiary of the estate does not bar the commencement of the action nor does it provide the administrator with any grounds for postponing action. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

Without the authorization of ancillary letters of administration issued in Vermont, a plaintiff administratrix appointed in a foreign jurisdiction lacks capacity to maintain a wrongful death action in Vermont. Dutil v. Mayette, 395 F. Supp. 922 (D. Vt.), aff'd, 517 F.2d 936 (2d Cir. 1975).

Foreign administrator was without standing to procure a judgment or settle a claim under this section without the aid of ancillary administration in this state. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

4. Pleadings.

Administrator's complaint that as a result of auto accident his decedent was injured and the injuries resulted in his death, and he had been living with his parents and rendering them services and was survived by them, and the action was for their benefit, however inarticulate, clearly pled a cause of action for wrongful death. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

Where declaration alleged that death resulted from tortious act of the defendant, that deceased left a widow and next of kin, and that plaintiff was his personal representative, this showed a cause of action under this section and section 1491 of this title without the further allegation that the suit was brought for the benefit of such widow and next of kin. Westcott v. Central Vermont Railroad, 61 Vt. 438, 17 A. 745 (1889).

5. Joinder of claims.

A count for the defendant's neglect, whereby intestate suffered damages in his lifetime, could be joined with a count for defendant's neglect resulting in death of intestate and brought for benefit of next of kin. Preston v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 280, 25 A. 486 (1891).

6. Limitation of actions .

It is purpose of this section and of other statutes providing for limitation of actions to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at time when witnesses have died or disappeared and documentary evidence has been lost or destroyed. Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1947).

*7. Construction with other laws.

Section 1492(a) prescribes a limitation period that is necessarily determinable where facts are known and indisputable; accordingly, a claim for wrongful death must be commenced within two years of the date of decedent's death, and unlike 12 V.S.A. § 512(4), which contains a discovery proviso providing that actions for personal injury shall be commenced within three years after the date of the discovery of the injury, the wrongful death statute contains no such discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

Section 557 of Title 12, providing that if one by or against whom an action may be brought dies before expiration of time within which such action may be commenced, then the period of limitation as to such action shall cease to operate at the date of death, and after issuance of letters testamentary or of administration the action, if the cause of action survives, may be commenced within two years, does not apply to a wrongful death action. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

*8. Computation.

The date of accrual in a wrongful death action under § 1492(a) is a determinable fact, and in construing a statute that bases the commencement of a limitations period upon a determinable fact and does not state or imply the need to determine accrual of an action extrinsically, the court must apply the plain language of the statute, and applying this standard to § 1492(a), this section is clear on its face and neither states nor implies a discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

An action under this section must be commenced within two years from the date of death rather than from the date of appointment of the administrator. Mier's Administrator v. Boyer, 124 Vt. 12, 196 A.2d 501 (1963).

*9. Absence from state.

While the word "accrues" appears three times in 14 V.S.A. § 1492, all such references are to defendants who are out of state when the wrongful death action accrues and are not to be interpreted as incorporating a discovery rule to the section; rather, § 1492(a) fixes the accrual date with clarity such that discovery is not an issue. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

The purpose of the tolling provisions of wrongful death statute of limitations, which suspend the period of limitations when the defendant is out of state, is to preserve the plaintiff's right of action during the time when it is impossible to serve process personally on a defendant or attach his property within the state. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990).

Where a defendant is amenable to service of process under statute extending jurisdiction over individual parties to the extent permitted by the due process clause and procedural rule governing personal service outside the state, the tolling provisions of statute of limitations applicable to wrongful death actions do not apply. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990).

Fact that defendant's decedent was dead at all times material did not mean that he was "out of state" within meaning of subsection (a) of this section. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

Periods of limitation provided by this section and section 557 of Title 12 are not suspended by reason of defendant's absence from state where substituted service under section 891 of Title 12 is available. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

When a defendant is amenable to process by service on commissioner of motor vehicles, under section 891 of Title 12, the time of his absence from and nonresidence in the state is not excluded from the two-year period provided in this section. Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1947).

10. Damages .

Although evidence that the plaintiff, decedent's widow, had been involved in an extramarital affair was relevant to claims for loss of companionship or loss of consortium, the court's admission of additional evidence concerning the homosexual nature of the extramarital affair was an abuse of discretion. Mears v. Colvin, 171 Vt. 655, 768 A.2d 1264 (mem.) (2000).

Although evidence that the decedent had provided his adult daughters with minimal financial or emotional support and that they had not visited decedent when he was hospitalized was relevant to the quality of the father-daughter relationship and the claim for loss of companionship and society, the court's admission of additional evidence concerning the out-of-wedlock teenage pregnancies of the daughters was an abuse of discretion. Mears v. Colvin, 171 Vt. 655, 768 A.2d 1264 (mem.) (2000).

It is inappropriate that a minor child may recover pecuniary loss under subsection (b) of this section if a parent is killed, but not if the parent is rendered permanently comatose. Hay v. Medical Center Hospital, 145 Vt. 533, 496 A.2d 939 (1985).

Damages recoverable for death of person are limited to pecuniary loss or injury which next of kin of deceased suffer by reason of his death. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865); D'Angelo v. Rutland Railway Light & Power Co., 100 Vt. 135, 135 A. 598 (1926); Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

*11. Pecuniary injuries.

The term "pecuniary injuries" in subsection (b) of this section does not limit recovery to purely economic losses. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Pecuniary injuries resulting from wrongful death cannot be presumed. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Destruction of reasonable expectation by next of kin of deriving some pecuniary advantage or benefit from continuance of life of deceased will sustain action. D'Angelo v. Rutland Railway Light & Power Co., 100 Vt. 135, 135 A. 598 (1926).

*12. Next of kin.

Because the term "next of kin" in the wrongful death act should carry the same meaning as it does in the laws of descent, brothers and sisters of a decedent can be next of kin entitled to recover damages under the act. Dubaniewicz v. Houman, 180 Vt. 1, 910 A.2d 897 (September 15, 2006).

The term "next of kin" properly denotes those persons most nearly related to the decedent by blood. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

If damages are to be recovered in a wrongful death action, next of kin must exist within meaning of provision that amount recovered shall be for the benefit of the spouse and next of kin, and if next of kin cannot be ascertained, computation of damages is impossible. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Where plaintiff and his wife agreed to adopt child and, while undergoing a six month waiting period before decree of final adoption could issue, they had custody of the child, and the child died while being treated in a hospital for a burn, and plaintiff, as administrator of child's estate, brought a wrongful death action against doctor, and hospital, and this section provided that amounts recovered were for benefit of the "next of kin," an equitable adoption, even were it decreed, would not confer next of kin status on the plaintiff and his wife so as to entitle them to maintain a wrongful death claim despite fact final adoption had not been decreed , and lower court properly granted defendants summary judgment. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

*13. Death of child.

Amendment to this section providing damages for loss of companionship where decedent is a minor child did not foreclose an award of such damages to parents of an adult decedent; amendment was not intended to restrict development of case law, and did not expressly restrict damages available under this subchapter, which must be construed with its remedial purpose in mind. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

In determining whether and what amount of damages are appropriate for loss of a child's companionship under this section, court or jury should consider the physical, emotional, and psychological relationship between the parents and the child, and should examine the living arrangements of the parties, the harmony of family relations, and the commonality of interests and activities. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Loss of the comfort and companionship of an adult child is a real, direct and personal loss that can be measured in pecuniary terms, and damages for such loss may constitute "pecuniary injuries" within meaning of subsection (b) of this section. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Woman killed by drunk driver was "injured in person" within meaning of Dram Shop Act, and because she would have been entitled to maintain action under that statute had she survived, her parents could recover damages available to them under this section. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Where decedent is a minor child, recovery for "loss of love and companionship of the child," and "destruction of the parent-child relationship," under subsection (b) of this section, includes grief and mental anguish. Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989).

In case of death of minor child, damages are not confined to loss of services during minority, but may, upon proper showing, include damages for loss of reasonably expected pecuniary benefit accruing after minority; in such case there should be considered the character, ability and willingness of deceased to help his parents, condition and necessities of parents, mutual relations of parents and child, and their probable future course of conduct with reference to each other. Butterfield v. Community Light & Power Co., 115 Vt. 23, 49 A.2d 415 (1946).

In action to recover for death of minor, where there was no evidence of reasonable expectancy of pecuniary benefit from the continuance of her life after reaching majority, damages were limited to value of her services during remainder of her minority. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

*14. Death of parent.

In determining pecuniary loss to minor children from death of father, it was proper to consider, so far as evidence permits, the physical, moral and intelligent training which they would have received from him during their minority had he lived. Hoadley v. International Paper Co., 72 Vt. 79, 47 A. 169 (1899).

*15. Determination of amount.

Under subsection (c) of this section, the county court or superior judge has jurisdiction to determine the net amount recovered by an action for wrongful death and the probate court is bound by such judgment of the county court or superior judge to make its decree pursuant to such judgment. In re Brown Estate, 129 Vt. 230, 275 A.2d 1 (1971).

*16. Nominal.

In actions brought solely for recovery provided for in section 1491 of this title, nominal damages cannot be recovered. Woodcock's Administrator v. Hallock, 98 Vt. 284, 127 A. 380 (1925).

*17. Evidence.

In action for wrongful death of a minor child, court properly held that expert testimony on the issue of parental grief and mental anguish was not required. Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989).

Plaintiff's constitutional right to a remedy at law for decedent's death was not violated by trial court's decision to grant defendant's motion for a directed verdict on the basis of a lack of proof of any damages. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Lack of evidence as to the relationship between deceased and her brother other than the legal existence of the brother-sister relationship and lack of evidence concerning pecuniary injuries or damages for loss of love and companionship foreclosed recovery for wrongful death by deceased's brother. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Where plaintiff's decedent was killed when his motorcycle hit a truck, and he had been discharged from the marines the previous month, had sent $1,200 to his parents the last year in service, was close to them, and was not married, direction of a verdict for defendant in negligence action, on the ground that the proof of damages was insufficient, was error, for evidence was disclosed that might have warranted damages. Johnson v. Hoisington, 134 Vt. 544, 367 A.2d 680 (1976).

Damages recoverable for death of persona re to be determined upon evidence of same character and quantum as required in ordinary cases. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

To warrant recovery for loss of services of decedent there must be some evidence from which their value may be at least inferred. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

In proving damages under this section it was permissible to show not only the earnings of deceased but also that they were largely used for his wife and children, as this relates to pecuniary injury suffered by decedent's spouse and children. Director General of Railroads v. Platt, 265 F. 918 (2d Cir. 1920).

Intestate's cause of action cannot be taken into account in assessing damages. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

*18. Distribution.

In distributing the proceeds of a third wrongful-death settlement to the decedent's spouse and daughters, the trial court properly found that it was not bound by a prior order and that apportionment of the third settlement should be measured, in part, by the parties' current circumstances, which were reflected in its decision to reduce one child's percentage based on the fact that she was no longer a minor. It failed, however, to apply this principle consistently to the other beneficiaries or the proceeding as a whole by restricting the daughters' introduction of additional evidence relevant to the distribution of the third settlement in proportion to the injuries from their loss. In re Estate of Dezotell, 201 Vt. 268, 140 A.3d 797 (2016).

Wrongful death statute did not authorize a superior court to control how the proceeds from a wrongful death suit were used or invested after distribution. Here, the probate court had the powers to properly supervise the actions of fiduciaries for the protection of a minor ward; thus, the superior court should have released the settlement proceeds from a wrongful death suit to the ward's grandmother as financial guardian. In re Willey, 189 Vt. 536, 14 A.3d 954 (mem.) (2010).

Distribution of proceeds in wrongful death action is determined by superior court, and while probate courts decree proceeds, their role is ministerial, to follow direction of superior court. Calhoun v. Blakely, 152 Vt. 113, 564 A.2d 590 (1989).

Proceeds from settlement of New Hampshire wrongful death action became part of decedent's estate under New Hampshire law, and probate court rather than superior court had jurisdiction to distribute proceeds. Calhoun v. Blakely, 152 Vt. 113, 564 A.2d 590 (1989).

Under this section, distribution is to be in direct proportion to pecuniary injuries suffered from wrongful death, a factor not considered in distribution of ordinary estate assets. Bassett v. Vermont Tax Dept., 135 Vt. 257, 376 A.2d 731 (1977).

By the 1961 amendment to this section, the net proceeds of the recovery, whether by settlement or action, must be decreed by the probate court having jurisdiction of the decedent's estate, and it is mandatory that the court decree the distribution of the amount recovered pursuant to the final judgment order of the county court or superior judge. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

Any moneys recovered by an administrator for wrongful death are assets in his hands, not to pay debts of deceased, but only for distribution to those entitled thereto. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

Although administrator holds moneys recovered for wrongful death as trustee, the execution of that trust in all its details must be overseen by probate court and determined by decree of that court. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

*19. Status prior to probate court decree.

Prior to decree of the probate court, moneys recovered for wrongful death are held under a trust not yet terminated, and an action at law may not be maintained by a beneficiary for recovery thereof. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

20. Attorney's fees.

In wrongful death actions the administrator has the burden to produce evidence that he had entered into an agreement upon fees with counsel and himself which was fair and satisfactorily carried out, or that the compensation sought for the legal services rendered was a reasonable one under the circumstances. In re Brown Estate, 129 Vt. 230, 275 A.2d 1 (1971).

21. Assumption of risk.

In action by next of kin of deceased brakeman against employer assumption by brakeman of obvious and known risks was a good defense. Skinner v. Central Vermont Railway, 73 Vt. 336, 50 A. 1099 (1901).

22. Contributory negligence.

Administratrix must prove affirmatively that no negligence of deceased contributed to the proximate cause of his death. Cummings v. Whitney, 203 F.2d 354 (2d Cir. 1953).

In action by administrator under this section, for benefit of parents, as next of kin, for death of child by wrongful act, action being right and interest of parents, their negligence, proximately contributing to the injury, bars recover. Butterfield v. Community Light & Power Co., 115 Vt. 23, 49 A.2d 415 (1946).

In action to recover for death of plaintiff's intestate who was struck by a train at grade crossing, burden of showing freedom from contributory negligence was on plaintiff. Goodwin v. Gaston, 103 Vt. 357, 154 A. 772 (1931).

In action by an administrator, under this section, to recover pecuniary damages to father and mother, as next of kin, of boy of ten years, run over and killed through negligence of defendant street railway company, since action was not in the right or interest of the decedent, but in that of the next of kin and it would be unjust for them to recover damages of their own causing, their proximate negligence, contributing to the injury, would be a bar; but if that negligence was the remote, not the proximate, cause of the injury, it could not be a bar. Ploof v. Burlington Traction Co., 70 Vt. 509, 41 A. 1017 (1898).

23. Common-law right of action.

A common-law right of action for wrongful death, to provide relief to parents who are not statutory next of kin, does not exist. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Cited. Fay v. Kent, 55 Vt. 557 (1883); Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); Boyden v. Fitchburg Railroad, 70 Vt. 125, 39 A. 771 (1897); Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45 (1905); Wetherby's Administrator v. Twin State Gas Co., 83 Vt. 189, 75 A. 8 (1910); McNamara v. Dionne, 298 F.2d 352 (2d Cir. 1962); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); State v. Oliver, 151 Vt. 626, 563 A.2d 1002 (1989); Fortier v. Byrnes, 165 Vt. 189, 678 A.2d 890 (1996).

CHAPTER 73. PROCEEDINGS FOR RECOVERY OF PROPERTY EMBEZZLED AND FRAUDULENTLY CONVEYED

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1551. Person suspected of embezzlement, concealing papers, or conveying decedent's property.

  1. An executor or administrator, heir, legatee, creditor, or other person interested in the estate of a deceased person may file a motion for discovery in the Probate Division of the Superior Court alleging that a person is suspected of having concealed, embezzled, or conveyed any of the deceased's property, or has possession or knowledge of any deed, conveyance, bond contract, or other writing that contains evidence of, or tends to disclose, the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased.
  2. The court may subpoena or otherwise order a person to appear before it to be examined under oath upon the matter or to answer interrogatories or requests to produce to be filed with the court. If the person so ordered refuses to appear and submit to examination or to answer interrogatories, the person may be subject to proceedings for civil contempt under 12 V.S.A. § 122 . Interrogatories and answers to interrogatories shall be in writing, signed under oath by the party examined, and filed with the court.

    Amended 1985, No. 144 (Adj. Sess.), § 71; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2945. P.L. § 2878. G.L. § 3333. P.S. § 2858. V.S. § 2470. R.L. § 2157. G.S. 52, § 7. R.S. 48, § 7. 1821, p. 54. R. 1797, p. 237, § 63. R. 1787, p. 52.

Revision note. Inserted a comma following "embezzlement" in the section heading for purposes of clarity.

Substituted "commissioner of corrections" for "jail of the county" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Embezzlement by executor or administrator, see § 2534 of Title 13.

Subpoenas generally, see Rule 45, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Other remedies.

Heir of insane person could, after his decease, maintain a suit in equity for an accounting to estate against intermeddlers, although one of them was the administratrix of estate and other had presented a claim against it. Bailey v. Bailey, 67 Vt. 494, 32 A. 470 (1894).

2. Appeal from order compelling discovery.

Where proceeding is commenced by executor in pursuance of this section for purpose of compelling defendant to make a discovery, under oath, as to property of estate in his hands, case must be finished in the probate court, before an appeal can be taken from that court to the county court; appeal from order, made by probate court that defendant answer certain interrogatories is premature and will be dismissed, on motion. Kimball v. Kimball, 19 Vt. 579 (1847).

§ 1552. Person entrusted with estate may be compelled to render account.

On motion of an executor or administrator, the court may order a person who is entrusted by an executor or administrator with any part of the estate of the deceased person to appear under oath and render a full accounting of the property. If the person so ordered refuses to appear and render an account, the person may be subject to proceedings for civil contempt under 12 V.S.A. § 122 .

Amended 1985, No. 144 (Adj. Sess.), § 72; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2946. P.L. § 2879. G.L. § 3334. P.S. § 2859. V.S. § 2471. R.L. § 2158. G.S. 52, § 8. R.S. 48, § 8. 1821, p. 34. R. 1797, p. 238, § 64.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--1985 (Adj. Sess.). Substituted "motion" for "the complaint" preceding "of an executor or administratore" and "into the person's" for "to his" preceding "possession" in the first sentence, deleted "probate" preceding "court may cite" in the first sentence and "against him" following "proceed" in the second sentence, and made other minor stylistic changes throughout the section.

Cross References

Cross references. Subpoenas generally, see Rule 45, Vermont Rules of Probate Procedure.

§ 1553. Forfeiture by person embezzling before letters issued.

If a person embezzles or converts any of the property of a decedent before the appointment of the executor or administrator, the person shall be liable to the executor or administrator of the estate for double the value of the property embezzled or converted, to be recovered for the benefit of the estate.

Amended 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2947. P.L. § 2880. G.L. § 3335. P.S. § 2860. V.S. § 2472. R.L. § 2159. G.S. 51, § 10. R.S. 47, § 10. 1821, p. 55. R. 1797, p. 237, § 62. R. 1787, p. 52.

Amendments--2017 (Adj. Sess.). Rewrote section.

ANNOTATIONS

Analysis

1. Purpose.

It was object of this section to provide a remedy for executor or administrator, in case of an embezzlement or alienation of goods of deceased, and to take away the right of a creditor, at common law, of charging the person guilty of the embezzlement or alienation as executor de son tort. Roys v. Roys, 13 Vt. 543 (1841).

2. Intent.

Where defendants fraudulently concealed effects of deceased before administration granted, with intent of finally converting same to their own use, but which administrator afterwards found in their possession, it was embezzlement under this section. Spaulding v. Cook, 48 Vt. 145 (1875).

To bring a case within this section, the act complained of must, at least, be done with the intent of wrongfully abstracting property from the estate of deceased, to the injury of its assets. Batchelder v. Tenney, 27 Vt. 578 (1855).

To subject person to penalty under this section, he must have acted from a wrong motive, and mala fide, and is entitled to have case made out against him by full proof. Roys v. Roys, 13 Vt. 543 (1841).

§ 1554. Recovery of estate fraudulently conveyed by deceased.

  1. If the executor or administrator determines there is a deficiency of assets in the estate, the fiduciary may bring an action in the Probate Division of the Superior Court for the benefit of the creditors to recover any property fraudulently conveyed by the deceased in his or her lifetime.
  2. The court may license the executor or administrator to sell so much of the property fraudulently conveyed as is necessary to make up the deficiency of assets in the estate to pay the debts of the decedent if it appears to the court that:
    1. there are insufficient assets to pay the debts of the deceased;
    2. the deceased conveyed property or a right or interest therein:
      1. with the intent to defraud creditors;
      2. to avoid a debt or duty; or
      3. with respect to real estate, in a manner that by law renders the conveyance void as against his or her creditor; and
    3. the estate attempted to be conveyed would be subject to attachment or execution by a creditor of the deceased in his or her lifetime.

      Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2948. 1947, No. 202 , § 2971. P.L. § 2881. G.L. § 3336. P.S. § 2861. V.S. § 2473. R.L. § 2160. G.S. 52, § 43. R.S. 48, § 37. 1831, No. 18 , § 2.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. License to sell and convey real and personal estate, see § 1611 et seq. of this title.

ANNOTATIONS

1. Title of grantee of fraudulent sale.

A voluntary or fraudulent conveyance vests the legal title in the grantee, subject only to be divested by the creditors of the grantor, if they choose to impeach it; the word "void" in this section means voidable only. Jones v. Williams, 94 Vt. 175, 109 A. 803 (1920).

§ 1555. Sale, how conducted.

The license to sell the real estate shall be granted and the sale conducted as provided for the sale of real estate for the payment of the debts of a deceased person. The sale and conveyance so made by the executor or administrator shall be valid and effectual to convey the real estate.

Amended 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2949. P.L. § 2882. G.L. § 3337. P.S. § 2862. V.S. § 2474. R.L. § 2161. G.S. 52, § 44. R.S. 48, § 38. 1831, No. 18 , § 2.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "real estate" in two places.

Cross References

Cross references. License to sell and convey real and personal property, see § 1611 et seq. of this title.

ANNOTATIONS

1. Notice.

It was not necessary to notify heirs and legatees before order of sale made by probate court, pursuant to this section. Harrington & Kittredge v. Gage, 6 Vt. 532 (1834).

§ 1556. Repealed. 2017, No. 195 (Adj. Sess.), § 8.

History

Former § 1555. Former § 1555, relating to how to conduct sales, was derived from V.S. 1947, § 2949; P.L. § 2882; G.L. § 3337; P.S. § 2862; V.S. § 2474; R.L. § 2161; G.S. 52, § 44; R.S. 48, § 38; 1831, No. 18 , § 2.

Annotations From Former § 1556

1. Prior law.

Prior to enactment of this section an administrator could not set aside fraudulent conveyance, since right belonged solely to the creditors, whom he did not represent. Peaslee v. Barney, 1 D. Chip. 331 (1814); Administrator of Martin v. Martin, 1 Vt. 91 (1828); Lynch's Administrator v. Murray, 81 Vt. 97, 69 A. 133 (1908).

2. Construction.

This section should be liberally construed. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

3. Fraudulent conveyances .

Administrator of a person who has conveyed his entire property to secure support of himself and wife, without making provision for the payment of his debts, may maintain, for benefit of creditors, a proper action for recovery of the same under this section. Pease v. Shirlock, 63 Vt. 622, 22 A. 661 (1891).

*4. Preference to creditors.

Conveyance without consideration to prefer certain creditors could be set aside where assets of state were insufficient. McLane v. Johnson, 43 Vt. 48 (1870).

*5. Exempt homestead.

Owner of an exempt homestead may convey it even if he does so with intent to place it beyond reach of his creditors. Morse v. Andrews, 112 Vt. 456, 28 A.2d 393 (1942).

*6. Liability in threatened suit.

Where decedent, on being threatened with a suit that he in good faith believed was unfounded and unjust, in order to make himself execution-proof, conveyed farm to defendant without any consideration, except that defendant assumed mortgage and agreed to reconvey to decedent when threatened suit was settled, conveyance was without sufficient consideration, and fraudulent as against rights of creditor in threatened suit, so could be set aside by decedent's administrator in favor of subsequent creditors. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

7. Deficiency in assets required for action.

If there is a deficiency of assets at any time during his administration, an administrator may sue to set aside a fraudulent conveyance. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

This section should extend only to cases where fraud would, without such action, prove prejudicial to assets of the estate. Allen v. Mower, 17 Vt. 61 (1843).

8. Disbursements by grantee.

When intestate's conveyance is set aside as fraud against his creditors, defendant will not be allowed his disbursements for taxes, insurance, and payments of interest on mortgage assumed by him, where those payments were necessary to give color of good faith to fraudulent transaction. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

9. Determination whether assets deficient .

Expenses of such suit cannot be considered in determining whether there was a deficiency of assets when it was begun, yet, if the administrator prevails in that litigation, his expenses therein, including attorney's fees, should be satisfied out of the property fraudulently conveyed. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*10. Property unaccounted for by executor or administrator.

Fact that, if decedent's executor had accounted for certain personalty that came into his hands, or if his bondsmen had been sued for his failure to do so, there would have been no deficiency of assets, is no defense, for defendant cannot retain advantage of his fraud by relying on the misdoings of decedent's executor, nor is liability of an executor's bondsmen an asset of the estate. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*11. Administration and funeral expenses.

In determining whether there is deficiency of assets there should be considered not only claims allowed by commissioners, but also burial and administration expenses. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*12. Review.

Whether there was deficiency of assets when suit was brought is question of mixed law and fact, and so finding of master that there was deficiency is conclusive, unless made through some mistake of law. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

§ 1557. Sale of fraudulently conveyed estate; motion of creditors.

  1. An executor or administrator shall not be bound to make sale of estate, so fraudulently conveyed, under a license from the Probate Division of the Superior Court, nor sue for the estate for the benefit of the creditors unless on motion of creditors of the deceased, nor unless the creditors filing the motion pay that part of the costs and expenses, or give security to the executor or administrator as the court judges equitable.
  2. An executor or administrator shall not be required to sell fraudulently conveyed property under a license from the Probate Division of the Superior Court, or sue for the fraudulently conveyed property for the benefit of the creditors unless the creditors of the deceased file a motion to do so and comply with any court requirements to pay associated costs and expenses or give security to the executor or administrator.

    Amended 1985, No. 144 (Adj. Sess.), § 73; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2951. 1947, No. 202 , § 2974. P.L. § 2884. G.L. § 3339. P.S. § 2864. V.S. § 2476. R.L. § 2163. G.S. 52, § 46. R.S. 48, § 40. 1838, No. 18 , § 1.

Revision note. In the section heading, substituted "motion" for "application" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Redesignated the existing text as subsec. (a) and added subsec. (b).

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" following "creditors unless on" and "filing the motion" for "making the application" preceding "pay", deleted "such" preceding "security" and "therefor" thereafter and "probate" preceding "court", and made other minor stylistic changes throughout the section.

§ 1558. Creditor may act.

  1. If there is a deficiency of assets in the estate, any creditor of the estate who obtains a license to do so from the Probate Division of the Superior Court may bring an action in the name of the executor or administrator in the Probate Division to recover any property fraudulently conveyed by the deceased in his or her lifetime. The action shall be for the benefit of the creditors and shall be brought in the same manner as an action by the executor or administrator under section 1554 of this title. A creditor licensed by the court to bring an action under this section may recover any property conveyed by the deceased in his or her lifetime by a fraudulent or void conveyance.
  2. An action under this section shall not be commenced until the creditor files with the court a bond with sufficient sureties conditioned to indemnify the executor or administrator against the costs of the action.
  3. A creditor who brings an action under this section shall have a lien upon the judgment recovered by him or her for the costs incurred and any other expenses the court deems equitable.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2952. P.L. § 2885. G.L. § 3340. P.S. § 2865. V.S. § 2477. R.L. § 2164. G.S. 52, § 47. 1854, No. 16 , § 1.

Revision note. Deleted "at law or in equity" following "action" in the first sentence to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

Analysis

1. Cause of action.

Cause of action and right to maintain a suit under this section was made out, if the conveyance was voluntary, if adequate provision was not then made for payment of existing creditors, and if ultimately there was a deficiency of assets to pay such creditors. Jones v. Williams, 94 Vt. 175, 109 A. 803 (1920).

2. Moral obligation as consideration.

Moral obligation arising from services performed by members of one's family without a contract for payment, was not a valid consideration for a conveyance which left grantor without sufficient property to pay his debts. Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 A. 749 (1896).

3. Limitation on property set aside.

In absence of actual intent to defraud, conveyance will be set aside only to extent necessary to protect creditors. Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 A. 749 (1896).

4. Parties.

When administratrix was grantee in alleged fraudulent conveyance, a creditor could not, by leave of probate court, proceed in name of administratrix, but could, without such leave, maintain a suit in his own name to set aside conveyance. Farmer's National Bank v. Thomson, 74 Vt. 442, 52 A. 961 (1902).

§ 1559. Repealed. 2017, No. 195 (Adj. Sess.), § 8.

History

Former § 1559. Former § 1559, relating to creditor's lien, was derived from V.S. 1947, § 2953; P.L. § 2886; G.L. § 3341; P.S. § 2866; V.S. § 2478; R.L. § 2165; G.S. 52, § 48; 1854, No. 16 , § 2; and amended by 2009, No. 154 (Adj. Sess.), § 238a.

CHAPTER 75. LICENSE TO SELL AND CONVEY REAL AND PERSONAL PROPERTY

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. LICENSES TO SELL-PROCEDURE

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date.

Cross References

Cross references. Mortgages and leases by executors or administrators, see § 2201 et seq. of this title.

Service of motion for license to sell, see Rule 5.1, Vermont Rules of Probate Procedure.

Subchapter 1. General Provisions

§ 1611. Court may order personal and real estate sold.

The Probate Division of the Superior Court may order the sale of all or part of the personal or real estate of the estate when it appears necessary or beneficial for the administration of the estate.

Amended 1985, No. 144 (Adj. Sess.), § 74; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2957. P.L. § 2890. G.L. § 3345. P.S. § 2870. V.S. § 2482. R.L. § 2169. G.S. 54, § 4. R.S. 50, § 4. 1821, p. 47. R. 1797, p. 231, § 47.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" preceding "of the executor".

§§ 1612, 1613. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1612, 1613. Former § 1612, relating to realty may be sold, though personally not exhausted, was derived from V.S. 1947, § 2954; P.L. § 2887; G.L. § 3342; P.S. § 2867; V.S. § 2479; R.L. § 2166; G.S. 52, § 34; R.S. 48, § 30; 1831, No. 19 ; 1821, p. 47; R. 1797, p. 234, § 54 and amended by 1985, No. 144 (Adj. Sess.), § 75 and 2009, No. 154 (Adj. Sess.), § 238a.

Former § 1613, relating to when whole of real estate may be sold, was derived from V.S. 1947, § 2955; P.L. § 2888; G.L. § 3343; P.S. § 2868; V.S. § 2480; R.L. § 2167; G.S. 52, § 31; R.S. 48, § 27; 1821, p. 48; R. 1797, p. 234, § 55; and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 1612

1. Consent by guardian of devisees.

Where son, acting as executor, sold premises, repurchased and then mortgaged them, such mortgage was not good as against the children of either himself or the daughter, born after the conveyance by him as executor, although such conveyance was under license of the probate court, and although he procured a guardian to be appointed of property of their children, who consented to granting of license. Dwight v. Eastman, 62 Vt. 398, 20 A. 594 (1890).

2. Sale of property subject to right of curtesy.

Right to occupy as tenant by curtesy was subject to be defeated by necessity of a sale of the real estate to pay wife's debts. Bennett v. Camp, 54 Vt. 36 (1882).

3. Unlicensed conveyance.

Because probate court, though it administers a complete system in settlement of decedents' estates, is not possessed of general equity powers, court of chancery will grant relief where insolvent executrix of an insolvent estate conveyed real estate thereof, without license of the probate court and in fraud of the creditors of the estate, by a deed that was not void nor voidable on its face. Wetmore & Morse Granite Co. v. Bertoli, 87 Vt. 257, 88 A. 898 (1913).

Cited. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

Annotations From Former § 1613

1. Injury to remainder.

Where personalty of a decedent's estate was insufficient to pay debts, and it was found that a sale of all realty would not be required for their payment, but that a part of the realty could not be sold without injury to remainder, a sale of all of the realty was authorized. In re Reynolds' Estate, 89 Vt. 224, 95 A. 498 (1915).

§ 1614. Interested persons may prevent sale; bond.

A license to sell real estate shall not be granted if any interested person gives a bond in such sum and with such sureties as the Probate Division of the Superior Court directs, conditioned to pay the debts and expenses of administration within such time as the court directs. The bond shall be for the security and may be prosecuted for the benefit of the creditors as well as of the executor or administrator.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2956. P.L. § 2889. G.L. § 3344. P.S. § 2869. V.S. § 2481. R.L. § 2168. G.S. 52, § 32. R.S. 48, § 28. 1821, p. 48. R. 1797, p. 232, § 49.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§§ 1615, 1616. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1615, 1616. Former § 1615, relating to claims may be sold or assigned, was derived from V.S. 1947, § 2958; P.L. § 2891; G.L. § 3346; P.S. § 2871; 1896, No. 42 , § 1 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Former § 1616, relating to purchaser of claims may sue, was derived from V.S. 1947, § 2959; P.L. § 2892; G.L. § 3347; P.S. § 2872; 1896, No. 42 , § 2.

Subchapter 2. Licenses to Sell - Procedure

§ 1651. License to sell estate; procedure.

When an executor or administrator considers it necessary or beneficial to sell real or personal estate, the Probate Division of the Superior Court may grant license, when it appears necessary or beneficial, under the following regulations:

  1. The executor or administrator shall file a motion setting forth the facts that show the sale is necessary or beneficial.
  2. In cases where the consent of interested persons is required, the executor or administrator shall file their written consents with the court.
  3. In the event that the consent of interested persons is required but cannot be obtained, the court shall schedule a hearing and notice shall be given as provided in the Rules of Probate Procedure.
  4. Before license is granted, the court may require the executor or administrator to give a new bond in an amount and with sureties as the court directs, conditioned that the executor or administrator shall account for the proceeds of the sale.
  5. The executor or administrator shall be sworn before the court or before some other person authorized to administer oaths and a certificate thereof shall be returned to the court before sale under the order granting license.
  6. If the evidence satisfies the court, the court may authorize the executor or administrator to sell that part of the estate deemed necessary or beneficial, either at public or private sale, and furnish the executor or administrator a copy of the license to sell or order of sale.
  7. If the order is to sell the estate at auction, the court shall designate the manner of notice of the time and place of sale, which shall be stated in the copy of the license to sell or order of sale furnished to the executor or administrator.
  8. The copy of the license to sell or order of sale furnished to the executor or administrator shall include findings addressing the requirements of subdivisions (1) through (4) of this section. A certified copy of the license to sell real estate or order of sale shall be recorded in the office where a deed of the real property to be sold is recorded.
  9. If ordered by the court, the executor or administrator shall file a report with the Probate Division of the Superior Court on the action authorized by each license granted under this section within 60 days from the date of the sale of any real or personal property.
  10. If the power to sell all or part of the testator's real or personal estate is expressly conferred by the will, the court shall issue a license to sell to the executor or administrator without requiring notice or hearing with respect to any property subject to the testamentary power, except a dwelling house in which the surviving spouse or an heir, devisee, or legatee is residing.
  11. Notwithstanding any provision of this section, no beneficial license to sell that is inconsistent with the provisions or intent of a will shall be issued.

    Amended 1981, No. 75 ; 1985, No. 144 (Adj. Sess.), § 76; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2966. P.L. § 2899. G.L. § 3354. P.S. § 2879. V.S. § 2489. 1886, No. 56 . R.L. § 2176. G.S. 52, § 39. 1850, No. 14 , § 2. R.S. 48, § 33. 1821, pp. 47, 61. R. 1797, p. 232, § 49. R. 1797, p. 234, § 55.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court' in the introductory paragraph and in subdivs. (3)-(5) and (8) and (9).

Amendments--1985 (Adj. Sess.). Deleted "he may make application to" preceding "the probate court" and "and such court" thereafter in the introductory paragraph, substituted "a motion" for "his petition in writing" preceding "setting" in subdiv. (1), rewrote subdivs. (2) and (3), substituted "an amount" for "such sum" following "bond in" and deleted "probate" preceding "court directs" in subdiv. (4), deleted "probate" following "returned to the" in subdiv. (5), rewrote the first sentence of subdiv. (8), deleted "in such manner as the court may require" preceding "reports" in subdiv. (9), and made other minor stylistic changes throughout the section.

Amendments--1981. Subdiv. (9): Added.

Cross References

Cross references. Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized place, see § 403 of Title 27.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Authority under license.

Authority of any executor, under license of probate court to sell real estate, could not be enlarged by his action under it beyond its legal effect. Brown v. Van Duzee, 44 Vt. 529 (1872).

2. Effect of license.

A license to sell real estate, granted by probate court, was an authority given by law as administered by probate court, and had no force except what law through action of court gave. Brown v. Van Duzee, 44 Vt. 529 (1872).

3. Title conveyed.

The word "sell" was operative word both in statute and license, and imported that whole title was to be parted with, and not that estate was to be encumbered. Brown v. Van Duzee, 44 Vt. 529 (1872).

4. Sale vacated.

Because the trial court found, and the record plainly showed, that appellant sought to defeat the plain purpose of the private nature of a sale of real property for his own planned benefit at the expense of an intestate's other heirs, the trial court properly ordered the parties to return to the status quo that existed before the sale. With all of the facts on the table, the parties could advocate, and the administrators and probate court could now decide, how best to proceed either by private or public sale, as would be most beneficial to all parties concerned. In re Estate of Doran, 187 Vt. 349, 993 A.2d 436 (2010).

Where commissioners, who had been appointed by probate court, had no duty to report to the probate court, or seek its approval, until after the property was sold and title passed, the court's order approving the contract of sale was an intermediate step and did not finally dispose of property; there was nothing in Vermont statutes that either required or prohibited this intermediate step so that its effect was to give the commissioners an advance ruling on a question that would no doubt arise when they sought approval for their post-sale report but their power to sell property was not contingent on advance approval of the probate court. Morrisseau v. Fayette, 164 Vt. 358, 670 A.2d 820 (1995).

§ 1652. Deed of executor or administrator.

The deed of an executor or administrator, who has obtained a certified copy of an order of sale or license to sell real estate from the Probate Division of the Superior Court, shall be valid to convey the real estate of a deceased person thereby authorized to be sold.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2967. 1947, No. 202 , § 2990. P.L. § 2900. G.L. § 3355. P.S. § 2880. V.S. § 2490. R.L. § 2177. G.S. 52, § 40. R.S. 48, § 34. 1821, p. 48. R. 1797, p. 234, § 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Title derived from executor or administrator.

A naked order or license from probate court to an administrator of a deceased person, to sell his real estate, was not sufficient to support a title derived from administrator, under such sale; but, it must appear, either from the order or from records of probate court, that such facts were found to exist, as warranted the issuing of order. Clapp v. Beardsley, 1 Aik. 168 (1826).

2. Conveyance of reversion of dower.

An administrator's deed, conveying by metes and bounds all real estate of which intestate husband died seised, "except the widow's dower," conveyed the reversion of dower. Starr v. Brewer, 58 Vt. 24, 3 A. 479 (1886).

3. Presumption.

Presumption is that administrator was duly appointed, that a license was granted by the court to sell the real estate, including reversion of dower, at private sale, for purpose of paying debts; that he properly accounted; that everything which ought to have been done in perfecting the deed was done; that it was valid. Starr v. Brewer, 58 Vt. 24, 3 A. 479 (1886).

4. Court appointed commissioners.

The court's order that real property of intestate be sold to provide widow's statutory share, and the license to commissioners, who had been appointed by the probate court, to effectuate that sale, was conclusive on the question of whether property would be sold; the license gave the commissioners full power to make the sale and convey a deed as if the deed had been executed by the deceased in his lifetime. Morrisseau v. Fayette, 164 Vt. 358, 670 A.2d 820 (1995).

Cited. Brown v. Van Duzee, 44 Vt. 529 (1872).

§ 1653. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former § 1653. Former § 1653, relating to when licenses to sell is beneficial, was derived from V.S. 1947, § 2960; 1945, No. 35 ; P.L. § 2893; G.L. § 3348; P.S. § 2873; 1906, No. 84 , § 1; 1896, No. 44 , § 23; V.S. § 2483; R.L. § 2170; 1872, No. 44 ; G.S. 52, § 37; 1850, No. 14 ; R.S. 48, § 31 and amended by 1975, No. 240 (Adj. Sess.), § 5; 1983, No. 223 (Adj. Sess.); 1985, No. 144 (Adj. Sess.), § 77; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 1653

1. Particular sales.

Where estate had debts of $256 not covered by personalty it was error to grant a license to sell all 118 acres of real estate to cover the debt, and where the heirs did not receive personal notice of the proposed sale, and did not consent in writing to sell, the sale could not be upheld as a license to sell which was beneficial to the heirs. In re Estate of Bettis, 133 Vt. 310, 340 A.2d 57 (1975).

Cited. Segerstrom v. Wells, 146 Vt. 314, 501 A.2d 1193 (1985).

§ 1654. Disposal of proceeds of beneficial sale.

In case of the sale of property for the benefit of interested persons, the proceeds shall be decreed to those persons otherwise entitled to the property.

Amended 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2961. P.L. § 2894. G.L. § 3349. P.S. § 2874. V.S. § 2484. R.L. § 2171. G.S. 52, § 38. R.S. 48, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1655. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former § 1655. Former § 1655, relating to realty taken on execution may be sold, was derived from V.S. 1947, §§ 2963, 2964; P.L. §§ 2896, 2897; G.L. §§ 3351, 3352; P.S. §§ 2876, 2877; V.S. §§ 2486, 2487; R.L. §§ 2173, 2174; G.S. 52, §§ 35, 36; 1846, No. 16 , §§ 1, 2 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

§ 1656. Estate sold to pay debts and legacies in other states.

When the sale of real or personal estate is not necessary to pay the debts of the deceased person in this State, and it appears to the Probate Division of the Superior Court by the records and proceedings of a Probate Division in another state that the estate of the deceased in the other state is not sufficient to pay the debts and legacies in that state, the Probate Division of the Superior Court in this State may license the executor or administrator to sell the real or personal estate for the payment of debts and legacies in the other state, in the same manner as provided for the payment of debts and legacies in this State.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2962. P.L. § 2895. G.L. § 3350. P.S. § 2875. V.S. § 2485. R.L. § 2172. G.S. 52, § 42. R.S. 48, § 36. 1827, No. 11 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "of" for "against" following "necessary to pay the debts" and "the" for "such" preceding "other state is not".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

§ 1657. Real estate sold to pay legacy.

When the personal property of the estate is insufficient to satisfy a legacy given by will, the executor may be licensed by the Probate Division of the Superior Court to sell real estate of the estate for the purpose of paying the legacy.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2965. P.L. § 2898. G.L. § 3353. P.S. § 2878. V.S. § 2488. R.L. § 2175. G.S. 52, § 49. R.S. 48, § 41. 1821, p. 47. R. 1797, p. 234, § 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 1658. Death, resignation, or removal of fiduciary; new license.

In case of the death, resignation, or removal of an executor or administrator before the completion of a sale of real estate under a license granted by the Probate Division of the Superior Court, on motion at any time within two years after issuing a prior license, the court may issue a new license to the successor fiduciary without further notice or hearing.

Amended 1985, No. 144 (Adj. Sess.), § 78; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2968. P.L. § 2901. G.L. § 3356. P.S. § 2881. V.S. § 2491. R.L. § 2178. 1872, No. 39 .

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" preceding "at any", "a" for "such" preceding "prior" and "the" for "his" preceding "successor" and deleted "thereon" following "hearing".

§ 1659. License when deceased under contract to convey; court may grant; effect of deed.

  1. When a decedent had contracted to convey real estate and the party contracted with has performed or is ready to perform the conditions of the contract, on motion for that purpose, the Probate Division of the Superior Court may grant license to the executor or administrator of the estate to convey the lands according to the contract, including any modifications to it. If the executor or administrator is the transferee under the contract, the judge of the court shall execute the deed. The deed executed by the executor, administrator, judge, or special administrator or master appointed by the court shall be valid to convey the real estate authorized to be conveyed under the contract.
  2. The Probate Division of the Superior Court shall not grant a license to convey the real estate of a deceased person under contract if it appears to the court after hearing that the assets in the hands of the executor or administrator will be reduced by the conveyance in an amount that prevents a creditor from receiving the whole debt and the value of the real estate to be sold is materially greater than the contract price.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2969. P.L. § 2902. G.L. § 3357. P.S. § 2882. V.S. § 2493. R.L. § 2180. G.S. 48, §§ 42, 43. R.S. 44, §§ 40, 41. 1821, p. 36. 1818, p. 83.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Contract to convey as license to occupy.

Where testator, after making of will, made a contract in writing, but unsealed, unwitnessed and unrecorded, whereby he agreed to convey a piece of land included in one of the devises, and was to be paid therefor two hundred dollars in installments, and to give a deed and take a mortgage back after fifty dollars had been paid, and where possession had been taken and twenty-eight dollars of price paid before testator's decease, contract did not operate as a pro tanto revocation of the will, but was only a license to occupy, under which the licensor's interest was lost by nonpayment; and if his payment created an equity in his favor, it could be asserted only by him, or his privies, not by executor for the purpose of depriving devisee of land. In re Fuller's Estate, 71 Vt. 73, 42 A. 981 (1898).

§ 1660. Repealed. 2017 No. 195 (Adj. Sess.), § 9.

History

Former § 1660. Former § 1660, relating to license granted by court, when; notice; hearing, was derived from V.S. 1947, § 2970; P.L. § 2903; G.L. § 3357; P.S. § 2882; V.S. § 2493; R.L. § 2180; G.S. 48, §§ 42, 43; R.S. 44, §§ 40, 41; 1821, p. 36; 1818, p. 83 and amended by 1985, No. 144 (Adj. Sess.), § 79 and 2009, No. 154 (Adj. Sess.), § 238a.

§ 1661. Real estate held in trust; license to convey to beneficiary.

When a person dies seized of real estate held in trust for another person or seized of real estate by virtue of a decree of foreclosure or sale on execution to the deceased or to an executor or administrator on a debt nominally owed to the deceased but actually owed to another person, after notice, the Probate Division of the Superior Court may grant license to the executor or administrator to convey the real estate to the person, or to an executor or administrator, for whose use and benefit they are held, and the court may decree the execution of the trust, whether created by deed or by law.

Amended 1985, No. 144 (Adj. Sess.), § 80; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2971. 1947, No. 202 , § 2994. P.L. § 2904. G.L. § 3358. P.S. § 2883. V.S. § 2494. R.L. § 2181. 1876, No. 81 . G.S. 48, § 44. R.S. 44, § 42. 1821, p. 37.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "the deceased or to an" for "him or to his" following "sale on execution to", deleted "given as required in section 1660 of this title" following "notice" and "probate" preceding "court may decree" and made other minor stylistic changes throughout the section.

ANNOTATIONS

Analysis

1. Trust by implication of law.

Probate court could grant an administrator license to convey real estate held by deceased in trust arising by implication of law, and could hear and determine facts necessary to show whether such a trust existed. Bickford v. Estate of Bickford, 68 Vt. 525, 35 A. 471 (1896).

2. Life tenant who pays off encumbrance.

A life tenant who paid an encumbrance was entitled to subrogation against the remainderman to extent latter was bound to pay to protect his estate, without proof of an intention to keep the mortgage on foot; and this right could be enforced by his executor, but, in such case, probate court could not grant relief, either by way of subrogation or under this section and resort must be had to court of chancery. Wilder's Executrix v. Wilder, 75 Vt. 178, 53 A. 1072 (1903).

§ 1662. Sale of encumbered property of deceased; disposition of surplus.

When the executor or administrator is licensed to sell real or personal estate of the decedent that is subject to any mortgage or other lien, the net sale proceeds shall be first applied to the payment of the secured debt. If the property sold is subject to a devise under the will of the decedent, any surplus sale proceeds shall be distributed to the devisee of the property. If the property sold is not subject to a devise under the will of the decedent, any surplus sale proceeds shall be administered by the executor or administrator as property of the estate.

Amended 1985, No. 144 (Adj. Sess.), § 81; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2972. P.L. § 2905. G.L. § 3359. P.S. § 2884. 1900, No. 38 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "the application" following "debt, on" in the first sentence and rewrote the second sentence.

ANNOTATIONS

Analysis

1. Payment of taxes and mortgage from funds of estate.

In suit in equity against administratrix of estate and heir of decedent, seeking specific performance of contract for sale of farm and personal property thereon belonging to decedent's estate, where agreement made by administratrix and heir was to sell farm to plaintiffs for sum less than amount due on note secured by mortgage of farm and endorsed by plaintiffs, in absence of finding that estate was solvent, decree of specific performance should not include order for payment of mortgage and arrears of taxes from purchase money and such additional sum from estate as might be necessary, and for transferring of personal property, since making such payment and transfer from the estate when the mortgage debt was partially unsecured might make it impossible to pay other creditors their pro rata shares and enable plaintiffs to gain an unfair advantage. Smith v. White's Estate, 108 Vt. 473, 188 A. 901 (1937).

2. Payment of mortgage on devised land sold to pay debt.

Where mortgaged property of an estate was sold under this section, a devisee's common-law right of exoneration was defeated, and mortgaged property was, to extent of its value, made primary source of payment. In re Reynolds' Estate, 94 Vt. 149, 109 A. 60 (1920).

Where an executrix applied for a license to sell all real estate of testatrix, representing that personal property was insufficient to pay debts and that real estate was encumbered by mortgages (which had been given after execution of will), and, while application was pending, buildings on lot burned and insurance was applied to pay the mortgage on that lot, and later the probate court granted the license prayed for, directing that the other mortgage should be paid from avails of land covered by it, the procedure in effect was pursuant to this section, and devisees of lot who were also the mortgagees were not entitled to exoneration. In re Reynolds' Estate, 94 Vt. 149, 109 A. 60 (1920).

3. Jurisdiction of probate court.

Court of chancery had no jurisdiction to order administratrix to pay money from funds in estate in satisfaction of mortgage and arrears of taxes and to transfer personal property, since probate court had exclusive jurisdiction over her administration account and that court alone could allow such payment and transfer in settlement of the account. Smith v. White's Estate, 108 Vt. 473, 188 A. 901 (1937).

§§ 1663, 1664. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1663, 1664. Former § 1663, relating to manner of sale of encumbered property; deed, was derived from V.S. 1947, § 2973; P.L. § 2906; G.L. § 3360; P.S. § 2885; 1900, No. 38 , § 1.

Former § 1664, relating to encumbered property; disposition of surplus, was derived from V.S. 1947, § 2974; P.L. § 2907; G.L. § 3361; P.S. § 2886; 1900, No. 38 , § 1.

§ 1665. Exception; application of law.

Section 1662 of this title shall not affect the rights of a surviving spouse, but shall apply to the application of the net proceeds of a sale of mortgaged real estate sold pursuant to a license granted by the Probate Division of the Superior Court after February 1, 1901.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2975. P.L. § 2908. G.L. § 3362. P.S. § 2887. 1900, No. 38 , §§ 1, 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

CHAPTER 77. DECREES OF DISTRIBUTION OR PARTITION OF ESTATES

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1721. Distribution; court to order; persons entitled to shares may recover.

  1. After payment of or provision for the debts, funeral charges, and expenses of administration, allowances made for the maintenance of the family and support of the minor children, and the assignment to the surviving spouse of the elective or intestate share of the decedent's estate:
    1. the executor or administrator may distribute without court order personal estate in partial or full satisfaction of legacies, bequests, and residuary interests in an aggregate amount not to exceed one-half of the remaining estate;
    2. the court, upon motion of the executor or administrator, may order partial distribution of devises, legacies, bequests, and residual shares, or order other payments, before a final accounting and distribution; and
    3. after the Probate Division of the Superior Court approves a final accounting and the Department of Taxes provides a notice of clearance, the court shall order the distribution of the remaining estate.
  2. In its orders of distribution, the court shall name the persons and proportions or parts to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator or any other person having possession of them. In the event that the assets remaining in the hands of the executor or administrator after one or more partial distributions are insufficient to satisfy the ultimate expenses and charges against the estate, those persons having received the distributions shall be liable to repay the executor or administrator on a pro rata basis. If the executor or administrator cannot collect against one or more of the persons to whom the distributions were made, the amount not recoverable shall be equitably apportioned by the court among the other persons subject to apportionment. The court may assign the claim for recovery of previously distributed assets to persons directed by the court to repay a disproportionate amount of the total.
  3. The executor or administrator shall include in its application for distribution of the residue that the decedent has been cremated and decedent's remains properly disposed of, or that a suitable gravestone has been erected or provided for at the grave of the deceased if buried in this State, and that perpetual care has been provided for the burial lot, if any.

    Amended 1989, No. 142 (Adj. Sess.), § 8; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3059. P.L. § 2974. G.L. § 3424. 1917, No. 254 , § 3376. P.S. § 2944. V.S. § 2553. 1884, No. 92 . R.L. § 2239. G.S. 57, § 4. R.S. 53, § 2. 1834, No. 4 , § 1. 1821, p. 58. R. 1797, p. 225, § 33. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsecs. (a) and (c)

Amendments--1989 (Adj. Sess.). Designated the existing first sentence of the section as subsec. (a) and designated the existing second through fourth sentences as subsec. (b), substituted "hereinafter" for "hereinbefore" preceding "provided" in the third sentence of subsec. (b) and added subsec. (c).

Cross References

Cross references. Automatic transfer of title to motor vehicle to surviving spouse, see § 2023 of Title 23.

Escheats, see § 681 et seq. of this title.

Inclusion of amount of estate tax in final decree of distribution, see § 7454 of Title 32.

ANNOTATIONS

Analysis

1. Residue.

"Residue" of estate means that part of estate which remains after payment of debts, funeral charges and expenses of administration and after allowance made for the expense of maintenance of family of deceased and for support of his children under seven years of age and after assignment to widow of her interest in real estate and of her share in personal estate, to be assigned to the persons entitled to same under will or statute of distribution. 1934-36 Op. Atty. Gen. 568.

2. Errors in decree.

Fact that a decree of distribution of an estate did not refer to funeral charges and other expenses did not make decree a nullity; if there was error in such decree, remedy was by way of appeal and the decree, if unappealed from, could not be collaterally attacked. Probate Court v. American Fidelity Co., 113 Vt. 418, 35 A.2d 495 (1944).

3. Matters on which decree conclusive.

A decree of the probate court, partitioning real estate among heirs, or devisees, is only conclusive as to the matter of division among them of whatever estate exists, which they have a right to have thus divided, but has no effect upon the question as to the title of the land. Grice v. Randall, 23 Vt. 239 (1851).

4. Right to possession.

When probate court has assigned real estate to heirs, heirs have a right to possession as against administrators; and such decree, unappealed from, divests the administrator of any right to control, or demand possession of, such estate. Administrators of Tryon v. Tryon, 16 Vt. 313 (1844).

5. Actions to recover shares .

* Construction with other laws.

Residuary legatee, to whom executor has failed to pay amount decreed by final decree, may maintain action of tort against executor for misappropriation of money of estate that took place prior to decree, by force of section 2534 of Title 13, which makes such misappropriation a felony, such statute having been passed primarily for the protection of persons so defrauded, and to supply defect of remedy provided by this section, which, although permitting legatee to sue for his legacy, does not give body action against executor. Reed v. Hendee, 100 Vt. 351, 137 A. 329 (1927); Walker's Guardian v. Hendee, 100 Vt. 362, 137 A. 334 (1927).

*6. Conditions precedent.

Administrator upon an estate is not liable to be sued for distributive share of an heir to such estate, previous to any proceedings being had in probate court in reference to fixing amount of each heir's distributive portion of estate, and persons to whom it is to be paid. Adams v. Adams, 16 Vt. 228 (1844).

*7. Parties.

When probate court has decreed the payment of a legacy, a court of equity has jurisdiction to compel the executor to pay it; and when a legatee brings a bill to enforce the payment of a legacy, it appearing that no other legatee or creditor is interested, they need not be joined as parties. Bellows v. Sowles, 57 Vt. 411 (1885).

*8. Pleadings.

An action of debt would lie against an executor upon a decree of probate court to recover a legacy, and it was not necessary to allege that executor had legacy in his possession, nor that debts, funeral charges, etc., had been paid. Weeks v. Sowles, 58 Vt. 696, 6 A. 603 (1886).

Cited. In re Will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

§ 1722. Parties interested may have order on giving bond.

An order for distribution may be made on motion of the executor or administrator or of one or more persons interested in the estate. The heirs, devisees, or legatees shall not be entitled to an order for distribution of their shares until the conditions for distribution described in section 1721 of this title have been satisfied, unless they give a bond, with such surety as the court directs, to secure the payment of the amounts necessary to satisfy the conditions and to indemnify the executor or administrator against the same.

Amended 1985, No. 144 (Adj. Sess.), § 82; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3060. P.L. § 2975. G.L. § 3425. P.S. § 2945. V.S. § 2554. R.L. § 2240. G.S. 57, § 5. R.S. 53, § 3. 1821, p. 58. R. 1797, p. 225, § 34. R. 1797, p. 229, § 43. R. 1787, p. 55.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Inserted "for distribution" preceding "may be made on" and substituted "motion" for "the application" thereafter in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

Service of motion to partition real or personal estate, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 1723. Advancement; how asserted; what constitutes.

An interested party may assert a claim that the decedent made a transfer during life that was an advancement. The party making the claim shall have the burden of proving it. Real or personal estate given by a decedent during the decedent's lifetime shall be reckoned toward the share of the decedent's estate otherwise allocable to the person to whom the lifetime gift was made as an advancement, and for that purpose shall be considered a part of the estate, if any of the following apply:

  1. The decedent declares in a writing, signed in the presence of and subscribed by two disinterested persons, that a gift or grant was made as an advancement.
  2. The gift or grant is acknowledged in a signed writing as an advancement by the recipient of the gift or grant.

    Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3066. P.L. § 2981. G.L. § 3431. P.S. § 2951. V.S. § 2560. R.L. § 2246. G.S. 56, §§ 12, 13. R.S. 52, §§ 8, 9. 1821, p. 58. R. 1797, p. 223, § 27. R. 1797, p. 226, § 35. R. 1787, p. 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Generally.

Doctrine of advancements is governed by statute, and, by this section, comes into operation only after a donor has died intestate. Cushman v. Outwater, 121 Vt. 426, 159 A.2d 89 (1960).

2. Conversion into absolute gift.

An advancement may be converted into an absolute gift by the intestate, by surrendering evidence thereof to be cancelled. Wheeler v. Wheeler's Estate, 47 Vt. 637 (1874).

3. Expenses of education as advancement.

Expenses of college education was a proper item to be charged as advancement if father chose so to charge it. Robinson v. Robinson, Brayt. 59 (1818).

4. Real estate as advancement.

Real estate, to be regarded as advancement, must be expressed in deed to be such, or expressed to be conveyed for love and affection; and if a pecuniary consideration be expressed in deed, estate conveyed cannot be made an advancement, by merely showing that deed was in fact executed upon consideration of love and affection. Heirs of Adams v. Adams, 22 Vt. 50 (1849).

Where father conveyed by deed certain lands to son, and consideration expressed in it was a pecuniary one, such conveyance could not be, prima facie, taken as an advancement to son; and if parol evidence was admitted tending to prove that conveyance was in fact made for love and affection, so that it might be presumed to be an advancement, it was competent for son to rebut such evidence by showing true intent of father in making deed. Newell v. Newell, 13 Vt. 24 (1841).

5. Entries in book as evidence.

Declarations of an intestate, whether made at time of making entries in his book against his children, or afterwards, are inadmissible as evidence of intention of intestate in making such entries; whether such charges were intended by intestate as an advancement must be evidenced by book, and intention of intestate gathered from book, and parol testimony was inadmissible to control intention of intestate. Weatherhead v. Field, 26 Vt. 665 (1854).

An entry made by a father upon a book, other than one on which he charged his accounts of debt and credit, and made in these words, "Property delivered William and Abel Brown, viz. Notes $200," etc., was held admissible as tending to prove that property specified in entry was delivered as an advancement. Brown v. Brown, 16 Vt. 197 (1844).

No particular form of words was required, in an entry made by father, to show as advancement; an entry on books of deceased, of property delivered to a child, made in such a manner as to exclude idea of a debt, is evidence that it was intended as an advancement; and intention need not be expressed in entry. Brown v. Brown, 16 Vt. 197 (1844).

6. Receipt as evidence.

A receipt executed by a son to his father, for a certain sum, in full of his share, as heir to his father's estate, was only evidence of an advancement to amount therein mentioned, and not to bar son of his share as heir. Robinson v. Robinson, Brayt. 59 (1818).

7. Jurisdiction of probate court.

Entire subject of advancement was within the jurisdiction of probate court. Heirs of Adams v. Adams, 22 Vt. 50 (1849).

§ 1724. Advancement reckoned toward heir's share.

If the amount advanced exceeds the share of the heir or other estate beneficiary, he or she shall be excluded from any further share in the estate but shall not be liable to refund any part of the amount advanced. If the advancement is less than the share of the heir or other estate beneficiary, he or she shall receive a further sum that, with the advancement, equals his or her legal share in the estate.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3067. 1947, No. 202 , § 3090. P.L. § 2982. G.L. § 3432. P.S. § 2952. V.S. § 2561. R.L. § 2247. G.S. 56, § 14. R.S. 52, § 10.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1725. Application of advancement.

  1. If an advancement is in real property, the same shall be set off, first, against the heir's or other beneficiary's share of real property in the estate, including the real property so advanced, and the excess value, if any, shall be set off against the heir's or other beneficiary's share of the decedent's personal estate.
  2. If an advancement is in personal estate, the same shall be set off, first, against the heir's or other beneficiary's share in the personal estate, and the excess value, if any, shall be offset against the heir's or other beneficiary's share in the real property of the estate.
  3. If the heirs or beneficiaries consent, a different application of the advancement may be made.

    Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3068. P.L. § 2983. G.L. § 3433. P.S. § 2953. V.S. § 2562. R.L. § 2248. G.S. 56, § 15. R.S. 52, § 11.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1726. Advancement reckoned toward share of representative of deceased heir.

If the recipient of an advancement dies before the decedent, the advancement shall be reckoned against the share of those interested in the estate by right of representation of the recipient, as it would be reckoned toward the share of the recipient, if living.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3069. P.L. § 2984. G.L. § 3434. P.S. § 2954. V.S. § 2563. R.L. § 2249. G.S. 56, § 16. R.S. 52, § 12.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Effect of release by heir on share or representatives.

Section made no provision for advancement to heir being taken in full for representative's share, unless advancement was of a sum equal to the representative's share, so writing by daughter of intestate purporting to release all her rights in estate in consideration for a specific advancement did not bar her children taking by right of representation. Buck v. Kittle's Estate, 49 Vt. 288 (1877).

§ 1727. Valuation of advancement.

Where the value of an advancement is expressed in the conveyance or in the charge made by the decedent, or by the intestate decedent at the time of declaration before two witnesses, the advancement shall be taken to be of the value so expressed or declared; otherwise it shall be estimated according to the value at the time it was made.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3070. 1947, No. 202 , § 3093. P.L. § 2985. G.L. § 3435. P.S. § 2955. V.S. § 2564. R.L. § 2250. G.S. 56, § 17. R.S. 52, § 13.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Advancement as bar on representatives.

Section did not authorize ancestor and heir expectant to agree on value of thing advanced as consideration for agreement to bar representatives of heir expectant from taking anything from estate. Buck v. Kittle's Estate, 49 Vt. 288 (1877).

§ 1728. Court to determine questions of advancement.

Questions as to an advancement made or alleged to have been made by the deceased may be heard and determined by the Probate Division of the Superior Court and shall be specified in the decree assigning the estate, regardless of whether the subject of a prior court order. The final decree of the Probate Division of the Superior Court or of the Supreme Court on appeal, shall be binding on all persons interested in the estate.

Amended 1985, No. 144 (Adj. Sess.), § 83; 2009, No. 154 (Adj. Sess.), § 122, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3071. P.L. § 2986. G.L. § 3436. P.S. § 2956. V.S. § 2565. R.L. § 2251. G.S. 57, § 17. R.S. 53, § 15. 1821, p. 58.

Amendments--2017 (Adj. Sess.). Deleted "to an heir" following "deceased" in the first sentence; inserted ", regardless of whether the subject of a prior court order" following "estate"; and substituted "all" for "the" preceding "persons" in the second sentence.

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court" in the first sentence, and substituted "probate division, or of the supreme court" for "probate court, or of the superior or supreme court" in the second sentence.

Amendments--1985 (Adj. Sess.). Deleted "and in the warrant to the commissioners, provided for in section 1729 of this title" following "estate" at the end of the first sentence and substituted "superior" for "county" preceding "or supreme" in the second sentence.

ANNOTATIONS

1. Jurisdiction of probate court.

Court of probate had jurisdiction over questions of advancement by an ancestor to his heir, and to decide whether heir had discharged or renounced his right in distribution of his ancestor's estate; and decree of a probate court upon such a question, affirmed by supreme court on appeal, was conclusive both at law and in equity. Robinson v. Swift, 3 Vt. 283 (1830).

§ 1729. Partition.

When the real or personal estate assigned to two or more heirs, devisees, or legatees is in common and undivided, and their respective shares are not separated and distinguished, partition and distribution of the estate shall be made pursuant to 12 V.S.A. chapter 179 or, if the court consents, by the Probate Division of the Superior Court upon application by any interested heir, devisee, or legatee, and shall be conclusive on all persons interested.

Amended 1985, No. 144 (Adj. Sess.), § 84; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3072. P.L. § 2987. G.L. § 3437. P.S. § 2957. V.S. § 2566. R.L. §§ 2252, 2265. G.S. 57, §§ 6, 19. R.S. 53, §§ 4, 17. 1821, p. 60. R. 1797, p. 219, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Partition of real estate generally, see § 5161 et seq. of Title 12.

ANNOTATIONS

1. Jurisdiction.

Probate court had no authority to make a partition of real estate left by deceased person among parties interested when estate was no longer in course of administration and none of original heirs retained any interest in the land. Cox v. Ingleston, 30 Vt. 258 (1858).

Where a certain number of acres were devised to one person, and residue of lot to another person, and one of devisees died before any division was in fact made between them, probate court had power on application of one of devisees to appoint a committee to set off and divide land, according to terms of devise. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

Cited. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844); Sparrow v. Watson, 87 Vt. 366, 89 A. 468 (1914).

§ 1730. Partition of real estate in different counties.

If the real estate lies in different counties, the Probate Division of the Superior Court may appoint different commissioners for each county. The estate in each county shall be divided separately as though there were no other estate to be divided.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3073. P.L. § 2988. G.L. § 3438. P.S. § 2958. V.S. § 2567. R.L. § 2253. G.S. 57, § 7. R.S. 53, § 5.

Editor's note. The language in the first sentence relating to appointment of commissioners is obsolete. Prior to its amendment by 1985, No. 144 (Adj. Sess.), § 84, section 1729 provided that partition was to be made by three commissioners appointed by the probate court.

Amendments--2017 (Adj. Sess.). Inserted "real" preceding "estate" in the section heading and deleted "In such case" preceding "the estate in each" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 1731. Partition unnecessary when parties agree.

When the Probate Division of the Superior Court distributes assets of an estate to one or more persons entitled to the same, it shall not be necessary to make partition of the assets distributed if the parties to whom the assignment is made agree to an allocation of assets without partition.

Amended 1985, No. 144 (Adj. Sess.), § 85; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3074. 1947, No. 202 , § 3097. P.L. § 2989. G.L. § 3439. P.S. § 2959. V.S. § 2568. R.L. § 2254. G.S. 57, § 16. R.S. 53, § 14.

Amendments--2017 (Adj. Sess.). Substituted "assets" for "the residue" following "distributes", "assets distributed" for "estate" following "of the" and "an allocation of assets without" for "dispense with" following "agree to".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "appoint commissioners to" preceding "make partition" and "or distribution" thereafter and made other minor stylistic changes.

§§ 1732, 1733. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 1732, relating to petition and notice for partition and distribution, was derived from V.S. 1947, § 3075; P.L. § 2990; G.L. § 3440; P.S. § 2960; V.S. § 2569; R.L. § 2255; G.S. 57, § 8; R.S. 53, § 6; R. 1797, p. 219, § 22.

Former § 1733, relating to appointment of guardians and agents before partition, was derived from V.S. 1947, § 3076; P.L. § 2991; G.L. § 3441; P.S. § 2961; V.S. § 2570; R.L. § 2256; G.S. 57, §§ 14, 23; R.S. 53, §§ 12, 21; 1821, p. 60; R. 1797, p. 220, § 23; R. 1797, p. 230, § 45, and amended by 1985, No. 144 (Adj. Sess.), § 86.

§ 1734. Partition when ownership has changed.

Partition of real estate may be made although some of the original heirs or devisees have conveyed their shares to other persons. The shares shall be set out to the persons holding the same, as they would have been to the heirs or devisees.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3077. P.L. § 2992. G.L. § 3442. P.S. § 2962. V.S. § 2571. R.L. § 2257. G.S. 57, § 9. R.S. 53, § 7.

Amendments--2017 (Adj. Sess.). Deleted "the" preceding "real estate" in the first sentence and substituted "The" for "Such" preceding "shares" in the second sentence.

ANNOTATIONS

1. Jurisdiction.

Probate court had no authority to make a partition of real estate, left by a deceased person, among parties interested therein, when estate was no longer in course of administration, and none of original heirs retained any interest in land. Cox v. Ingleston, 30 Vt. 258 (1858).

County court had jurisdiction of petition for partition of real estate, which descended to heirs of a deceased person, among whom it never was divided, where petitioner had bought out a part of said heirs and held estate in common with others. Collamer v. Hutchins, 27 Vt. 733 (1855).

§ 1735. Shares, how set out in partition.

The shares in the real and personal estate shall be set out to each individual, in proportion to his or her right, by metes and bounds or other description that permits the shares to be easily distinguished, except to the extent that two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3078. P.L. § 2993. G.L. § 3443. P.S. § 2963. V.S. § 2572. R.L. § 2258. G.S. 57, § 10. R.S. 53, § 8.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Land excepted.

Where devise was of twenty acres of land on north side of a certain lot, except house standing thereon and land necessary for years, etc., around it, land excepted must be taken out of twenty acres, and devisee had no claim to twenty acres, after setting off the excepted parts. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

2. Buildings.

Where, by will, one-half of a certain barn was devised to one person, and the other half to other, and one of devisees purchased by parol, and without any writing executed, the interest of other devisee in barn, committee need not make any mention of barn in their report. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

§ 1736. Severance from estate of third persons.

When partition of real estate among heirs or devisees is required and the real estate lies in common and undivided with the real estate of another person, the court shall have jurisdiction over the real estate and the other person, and shall divide and sever the estate of the deceased from the estate of the other person. A division made pursuant to this section by the Probate Division of the Superior Court shall be binding on persons interested.

Amended 1985, No. 144 (Adj. Sess.), § 87; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. VS. 1947, § 3079. P.L. § 2994. G.L. § 3444. P.S. § 2964. V.S. § 2573. R.L. § 2259. G.S. 57, § 13. R.S. 53, § 11. 1921, p. 60. R. 1797, p. 220, § 23. R. 1797, p. 230, § 45.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "the" for "such" following "required and" and "court" for "commissioners" following "person, the" in the first sentence and rewrote the second sentence.

ANNOTATIONS

1. Estate in common.

Where estate of decedent lay in common with other real estate, it was duty of committee first to sever estate which they were to divide from that with which it lay in common and fact that all parties in interest requested them to proceed otherwise, did not justify committee in departing from the direction of the statute; if they did, their report could have no effect as a decree of probate court, however it might stand as an award of arbitrators. In re Parsons' Estate, 64 Vt. 193, 23 A. 519 (1891).

§ 1737. When estate cannot be divided without injury; to be sold; procedure.

When the real estate of a decedent, or any part of it greater than the share in it of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had for the assignment or sale of the real estate in the Probate Division of the Superior Court.

Amended 1985, No. 144 (Adj. Sess.), § 88; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3080. P.L. § 2995. G.L. § 3445. P.S. § 2965. 1902, No. 54 , §§ 1, 2. V.S. §§ 2575, 2576. R.L. §§ 2261, 2262. G.S. 57, §§ 11, 12. R.S. 53, §§ 9, 10. 1821, pp. 59, 60. R. 1797, p. 229, § 42. R. 1797, p. 230, § 44.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "the same" following "owners" and "as are provided for partition of real estate by proceedings in the county court" following "thereof".

ANNOTATIONS

1. Partition.

Vermont Code provides that when the real estate of a decedent, or any part thereof greater than the share therein of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had in the Probate Division of the Superior Court for the assignment or sale thereof. The Court views this power as an adjunct to the responsibility of the probate court to partition real property assigned to devisees in common and undivided. In re Estate of Fitzsimmons, 195 Vt. 94, 86 A.3d 1026 (2013).

§ 1738. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 1738, relating to report of commissioners appointed to partition estate, was derived from V.S. 1947, § 3081; P.L. § 2996; G.L. § 3446; P.S. § 2966; V.S. § 2577; R.L. § 2263; G.S. 57, § 15; R.S. 53, § 13; 1821, p. 61; 1804, p. 126; R. 1797, p. 219, § 22, and amended by 1971, No. 179 (Adj. Sess.), § 6.

§ 1739. Final decree of distribution or partition; bond.

The Probate Division of the Superior Court shall not make a final decree of distribution or partition in an estate against which a person engaged in the military service of the United States and outside this State has a claim, until a bond is filed in the court by the creditors, heirs, legatees, or devisees or some one or more of them, in a sum and with sureties as the court directs, conditioned to pay the claimant the sum of money that is finally allowed him or her against the estate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3082. P.L. § 2997. G.L. § 3447. P.S. § 2967. V.S. § 2578. R.L. § 2264. G.S. 57, § 24.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Probate bonds, see § 2101 et seq. of this title.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Partition.

Vermont Code provides that when the real estate of a decedent, or any part thereof greater than the share therein of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had in the Probate Division of the Superior Court for the assignment or sale thereof. The Court views this power as an adjunct to the responsibility of the probate court to partition real property assigned to devisees in common and undivided. In re Estate of Fitzsimmons, 195 Vt. 94, 86 A.3d 1026 (2013).

§ 1740. Payment of expenses; from estate, if sufficient.

At the time of partition or distribution of an estate, if the executor or administrator has retained sufficient assets that may lawfully be applied for that purpose, the expenses of partition or distribution may be paid by the executor or administrator when it appears to the court equitable and not inconsistent with the intention of a testator.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3083. P.L. § 2998. G.L. § 3448. P.S. § 2968. V.S. § 2579. R.L. § 2266. G.S. 57, § 20. R.S. 53, § 18.

Amendments--2017 (Adj. Sess.). Substituted "assets that" for "effects in his hands which" following "sufficient" and deleted "such" following "expenses of".

§ 1741. Parties to pay cost of partition, when.

If there are insufficient assets in the hands of the executor or administrator that may be lawfully applied to the costs of partition, the expenses and charges of partition determined by the Probate Division of the Superior Court shall be paid by the parties interested in the partition in proportion to their respective shares or interests in the premises and the proportions shall be allowed by the court. If a person interested in the partition does not pay his or her proportion or share, the court may issue a judgment order for the sum assessed, for the benefit of the executor or administrator against the party not paying, returnable in 60 days from the date of the order.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3084. P.L. § 2999. G.L. § 3449. P.S. § 2969. V.S. § 2580. R.L. § 2267. G.S. 57, § 21. 1851, No. 21 . R.S. 53, § 19. 1821, p. 61. R. 1797, p. 231, § 46.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

§ 1742. Record of decrees relating to real estate; where recorded.

Certified copies of final orders or decrees of a Probate Division of the Superior Court relating to real estate shall be recorded in the office where by law a deed of the real estate is required to be recorded.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3085. P.L. § 3000. G.L. § 3450. P.S. § 2970. V.S. § 2581. 1894, No. 162 , § 2520.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" following "deed of".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized place, see § 403 of Title 27.

§ 1743. Repealed. 2017, No. 195 (Adj. Sess.), § 10.

History

Former § 1743. Former § 1743, relating to partial distributions, was derived from 1975, No. 240 (Adj. Sess.), § 8 and amended by 1985, No. 144 (Adj. Sess.), § 89; 2009, No. 154 (Adj. Sess.), § 238a.

CHAPTER 79. CONVEYANCE WHEN RECORD HOLDER DECEASED

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Procedure for conveyance of property when record holder deceased generally, see Rule 80, Vermont Rules of Probate Procedure.

§ 1801. Title in deceased persons; petition to Probate Division of the Superior Court.

When the record title to real estate or an interest therein stands in the name of a person who has been deceased for more than seven years and the estate of the person has not been probated and the interest of the heirs in that real estate has not been conveyed or has been defectively conveyed, the Probate Division of the Superior Court where venue lies, upon verified petition and after notice and hearing as provided by the Rules of Probate Procedure, shall determine whether the deceased person or the decedent's heirs are possessed of an existing enforceable title or interest in that real estate.

Amended 1985, No. 144 (Adj. Sess.), § 90; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2980. P.L. § 2913. 1919, No. 87 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" following "estate of".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Jurisdiction.

Where a person had been deceased for over seven years, she had never conveyed a disputed lot during her lifetime, though no doubt by error, her estate had never been probated, and, at the time the petition under this section was filed, no person claiming to be her heir had attempted to or effectively conveyed their interest in the property; therefore, the probate court had proper jurisdiction over the property. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840 (mem.) (2002).

A special quitclaim deed executed by an heir of the decedent several months after petitioners had filed in probate court claiming adverse possession of a disputed parcel did not defeat the jurisdiction of the court to determine title to the real estate because the deed "was a defective conveyance and of no legal effect." Lysak v. Grull, 174 Vt. 523, 812 A.2d 840 (mem.) (2002).

Under this section the probate court has specifically been given the authority to determine whether there exists an enforceable title in a deceased person, his estate, or in his heirs and, in such situations the question of adverse possession can be determined by such court. In re Estate of Allen, 129 Vt. 107, 272 A.2d 130 (1970).

This section grants power to a probate court to try and determine question of title to real estate where the title to real estate is in the name of a person who has been deceased for seven years, who made no conveyance of such property during his lifetime, whose interest in such real estate has not been administered in the probate court and, in addition, where the heirs of the deceased have made no conveyance of their interest in the real estate, or if such were made, they are defective. In re Estate of Allen, 129 Vt. 107, 272 A.2d 130 (1970).

2. Adverse possession.

Probate court erred in its conclusion that petitioner acquired ownership of parcel of land by adverse possession against his fellow co-tenants; co-tenant must oust his fellow co-tenants by some overt and notorious act of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the rights of others; the presumption is that one co-tenant in possession is holding the property for all co-tenants. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1802. Determination by court of persons entitled to estate.

If the court determines that the heirs or personal representatives of the deceased person are not at the time of the hearing in possession of the real estate and are not entitled to reenter it or to institute and maintain a suit to recover possession of it, the court shall adjudge and decree that the real estate constitutes no beneficial part of the estate of the deceased person and may appoint an administrator to convey the record title of the real estate to the person or persons adjudged by the court to be legally entitled to it.

Amended 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2981. P.L. § 2914. 1919, No. 87 , § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1803. Petition.

A petition under this chapter may be brought by any person in possession or who claims the right to possession of the real estate. It shall recite the facts upon which it is based and shall specify the names and addresses of the heirs and representatives of the deceased person, and of all claimants so far as each class is known to the petitioner.

Amended 1971, No. 185 (Adj. Sess.), § 175, eff. March 29, 1972; 1985, No. 144 (Adj. Sess.), § 91.

History

Source. V.S. 1947, § 2982. P.L. § 2915. 1919, No. 87 , § 3.

Revision note. In the section heading, deleted "service" following "Petition" for purposes of conformity with the text of the section, as amended.

Amendments--1985 (Adj. Sess.). Deleted "be verified under oath and shall" preceding "recite" in the second sentence and deleted the former third and fourth sentences.

Amendments--1971 (Adj. Sess.). Deleted "writ of" preceding "summons" in the third sentence, substituted "as the supreme court may by rule provide for service of process in civil actions" for "provided by section 5165 of Title 12" following "manner" and made other minor changes in phraseology in the fourth sentence.

§ 1804. Appearance; appeal.

A person not so served may become a party defendant by entering his or her appearance with the Probate Division of the Superior Court before the expiration of the time provided by this section for appeal. An appeal may be taken by any person in interest within 30 days from any final decree issued under this chapter by the Probate Division of the Superior Court.

Amended 1971, No. 185 (Adj. Sess.), § 176, eff. March 29, 1972; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2983. P.L. § 2916. 1919, No. 87 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1971 (Adj. Sess.). Substituted "thirty" for "forty-two" preceding "days", "any" for "a" preceding "person in interest" and deleted "in the manner provided by section 2561 of Title 12" thereafter in the second sentence.

CHAPTER 80. WAIVER OF ADMINISTRATION

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which enacted this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1851. Applicability.

This chapter shall apply to all estates, testate and intestate, other than small estates administered under chapter 81 of this title.

Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1852. Motion for waiver of administration; order.

  1. A motion for waiver of administration may be submitted to the Probate Division of the Superior Court with the petition to open the estate or at any time before an accounting is due. The motion shall be made under oath and shall state that:
      1. if the decedent died testate, the moving party is the sole beneficiary of the decedent's estate, and has been nominated and proposes to serve as sole executor; or (1) (A) if the decedent died testate, the moving party is the sole beneficiary of the decedent's estate, and has been nominated and proposes to serve as sole executor; or
      2. if the decedent died intestate, the moving party is the sole heir of the decedent's estate and proposes to serve as sole administrator;
    2. the moving party is the sole fiduciary of the estate;
    3. the decedent owned no real property in the State of Vermont; and
    4. the administration of the estate will be complete without supervision by the Probate Division of the Superior Court in accordance with the decedent's will and applicable law.
  2. The court may grant the motion to waive further administration if it finds that:
    1. the moving party is the only estate beneficiary under the will of a decedent or the only heir of a decedent who died intestate;
    2. the moving party is the sole fiduciary of the estate; and
    3. the decedent owned no real property in the State of Vermont.
  3. If the court grants a motion to waive further administration filed under subsection (a) of this section, it shall issue an order waiving the duty to file an inventory, waiving or discharging the fiduciary bond, and dispensing with further filing with the court other than the final affidavit of administration.

    Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1853. Administration.

  1. Administration of an estate under this chapter may be completed upon the court's approval of the executor's or administrator's affidavit of administration. Unless extended by the court, the affidavit shall be filed not less than six months or more than one year after the date of appointment of the executor or administrator.
    1. The affidavit of administration shall state that to the best of the knowledge and belief of the executor or administrator: (b) (1)  The affidavit of administration shall state that to the best of the knowledge and belief of the executor or administrator:
      1. there are no outstanding expenses of administration, or unpaid or unsatisfied debts, obligations, or claims attributable to the decedent's estate; and
      2. no taxes are due to the State of Vermont, and tax clearance has been received from the Department of Taxes.
    2. If the executor or administrator fails to file the affidavit of administration within the time prescribed by subsection (a) of this section, the executor or administrator shall be in default. If he or she fails to file the affidavit or a request for additional time within 15 days after receiving notice of default, the court may impose sanctions it deems appropriate, including an order that waiver of administration is no longer available. The court shall provide notice of the default to the executor or administrator by first-class mail or other means allowed by the Rules of Probate Procedure.

      Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1854. Discharge of executor or administrator.

Upon the submission of an affidavit of administration, the Probate Division of the Superior Court may close the estate and discharge the executor or administrator if it determines that the provisions of sections 1851 and 1852 of this title have been met.

Added 2017, No. 195 (Adj. Sess.), § 12.

CHAPTER 81. SMALL ESTATES

Sec.

Cross References

Cross references. Small estate proceedings generally, see Rule 80.3, Vermont Rules of Probate Procedure.

§ 1901. Commencement of small estate.

  1. When a decedent's estate has a fair market value of not more than $45,000.00 and consists entirely of personal property, provided that the estate may include a time-share estate as defined by 32 V.S.A. § 3619(a) , an estate may be commenced by filing:
    1. a petition to open a probate estate;
    2. a list of interested persons;
    3. the filing fee;
    4. an original death certificate;
    5. an inventory of the estate, including information or estimates available at the time of filing;
    6. an affidavit of paid and outstanding funeral expenses and any other known or reasonably ascertainable debts of the decedent;
    7. a bond without surety in the amount of the fair market value of the estate; and
    8. the will, if any.
  2. An interested party who does not consent to the small estate proceeding in writing shall be provided with notice of the petition and the pending fiduciary appointment and may file any objections with the court within 14 days after receiving the notice. If no objections are filed, the fiduciary appointment and any will offered for admission shall be approved by the court without further notice or hearing.
  3. If, after an estate is opened pursuant to subsection (a) of this section, it is determined that the value of the decedent's estate at the time of his or her death exceeded $45,000.00, the fiduciary shall petition the court to order that the estate be administered pursuant to the laws and rules applicable to estates with a fair market value in excess of $45,000.00. The court shall grant the petition if it finds that the estate has a fair market value in excess of $45,000.00 and that all applicable fees have been paid.

    Amended 1975, No. 240 (Adj. Sess.), § 10; 2009, No. 75 (Adj. Sess.), § 1; 2019, No. 36 , § 1.

History

Amendments--2019. Section amended generally.

Amendments--2009 (Adj. Sess.). Introductory paragraph: Substituted "is" for "shall be" following "application".

Subdiv. (1): Substituted "the" for "said" preceding "deceased" and deleted "by one or more competent persons or by a disinterested person if deemed necessary by the court" following "cash value".

Subdiv. (2): Rewrote the subdiv.

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§ 1902. Letters of administration, small estates, notice.

  1. When a small estate is commenced pursuant to section 1901 of this title:
    1. If the decedent had a will, the will shall be admitted and letters of administration shall be issued as provided in section 902 of this title.
    2. If the decedent did not have a will, letters of administration shall be issued as provided in section 903 of this title.
  2. Within 60 days after the issuance of letters of administration, and at any time thereafter if deemed necessary by the fiduciary, the fiduciary shall confirm, correct, or supplement the inventory filed with the petition.
  3. Letters of administration issued pursuant to this section shall be effective for one year after the date of issuance. The court may extend the one-year duration upon motion of the fiduciary for good cause shown.

    Added 1975, No. 240 (Adj. Sess.), § 10; amended 1981, No. 150 (Adj. Sess.), § 1; 2009, No. 75 (Adj. Sess.), § 2; 2013, No. 102 (Adj. Sess.), § 5; 2019, No. 36 , § 1.

History

Amendments--2019. Section amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (b)(2): Inserted "other than a time-share estate as defined by 32 V.S.A. § 3619(a)" following "estate".

Amendments--2009 (Adj. Sess.). Section amended generally.

Amendments--1981 (Adj. Sess.). Section amended generally.

§ 1903. Same; discharge upon payment of funeral expenses; residue.

    1. If it appears from the record that the estate is insolvent, the fiduciary shall apply for an order of dividend from the court. If the estate is not insolvent, the fiduciary shall make payment in settlement with all known or reasonably ascertainable creditors, including payment of income taxes due for the year of the decedent's death, and pay any remaining balance to the beneficiaries of the estate as provided by the will, if any, or as otherwise provided by law. (a) (1)  If it appears from the record that the estate is insolvent, the fiduciary shall apply for an order of dividend from the court. If the estate is not insolvent, the fiduciary shall make payment in settlement with all known or reasonably ascertainable creditors, including payment of income taxes due for the year of the decedent's death, and pay any remaining balance to the beneficiaries of the estate as provided by the will, if any, or as otherwise provided by law.
    2. Upon completion of the payments required by subdivision (1) of this subsection, the fiduciary shall file with the court a sworn statement setting forth the amounts and recipients of each payment.
  2. The court may discharge the fiduciary without further accounting and without notice after the fiduciary has completed the requirements of subsection (a) of this section.
  3. If a discharge is given under this section, any assets distributed by the fiduciary shall be subject to claims later established, and sections 1202 and 1203 of this title shall apply, but the executors or administrators shall not be liable to distributees for losses to them when required to reimburse creditors. Each distributee shall have a duty of proportionate contribution for any claims brought against one or more other distributees, not to exceed the amount received by the distributee from the estate.

    Added 1975, No. 240 (Adj. Sess.), § 10; amended 1981, No. 150 (Adj. Sess.), § 2; 2009, No. 75 (Adj. Sess.), § 3; 2019, No. 36 , § 1.

History

Revision note. In subsec. (a), substituted "sections 1901 and 1902 of this title" for "the last two preceding sections" to conform reference to V.S.A. style.

Amendments--2019. Section amended generally.

Amendments--2009 (Adj. Sess.). Heading: Substituted "residue" for "and balance to widow, children" following "expenses".

Subsec. (a): Substituted "chapter 42" for "chapters 41 and 45" preceding "of this title".

Amendments--1981 (Adj. Sess.). Subsec. (a): Substituted "chapters 41 and 45" for "chapter 45".

CHAPTER 83. UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT

Sec.

§ 1951. Right to disclaim interest in property.

A person, or the representative of a deceased, incapacitated or protected person, to whom any property or interest therein devolves, by whatever means, may disclaim it in whole or in part by delivering a written disclaimer under this chapter. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

Analysis

1. Wrongful death action.

Because, under the Wrongful Death Act, damages are based on the loss suffered by the statutory beneficiaries, the spouse and the next of kin, these beneficiaries may not disclaim their status, in favor of the decedent's parents, by executing a disclaimer pursuant to the Uniform Disclaimer of Property Interests Act. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

2. Revocation of disclaimer.

Disclaimers under Vermont's statutory scheme are irrevocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument. On the weight of the case law, by virtue of the statutory text, and out of concern for the stability of property rights, disclaimers are not revocable based on disclaimant's mistake of law or simply because the revocation is filed within the statutory time period for filing disclaimers, even if there is no prejudice. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

One challenging a will normally has the burden of demonstrating the existence of undue influence, but the burden of proof shifts to the proponent of the will when the circumstances connected with the execution of the will are such as the law regards with suspicion; thus, where suspicious circumstances are present, the will is presumed to be the product of undue influence, and it will not be enforced unless the proponent persuades the trier of fact that no undue influence attended the execution of the will. The court sees no reason not to apply the same principle in cases involving the execution or revocation of disclaimers of property interests, particularly in the context of the disclaimer of an inheritance. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Although a unilateral mistake of law may not normally be the basis for allowing revocation of a disclaimer, the disclaimant's misunderstanding of the legal effect of a disclaimer in the context of suspicious circumstances may be a critical factor for the fact finder to consider in determining whether there was duress, coercion, undue influence or some other equitable basis for allowing revocation. In other words, the disclaimant's misunderstanding of the legal effect of the disclaimer, when suspicious circumstances are present, may inform the fact finder's determination as to whether the disclaimant's sound judgment or true desire was overcome through coercive tactics. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

When a mother disclaimed her interest in her son's estate in favor of her nephew, the facts established suspicious circumstances that imposed upon the nephew the burden of showing the absence of undue influence or coercion with respect to the mothers' signing of the disclaimer and precluded summary judgment for the nephew. The nephew, the executor for the son's estate, had advocated for the 92-year-old mother to sign a disclaimer, three weeks after the unexpected death of her son, that would effectively transfer the assets of the estate from the mother to himself as the estate's contingent beneficiary; furthermore, the mother signed the disclaimer, which had not been prepared beforehand, without understanding its consequences and without being given an earlier opportunity to review it herself or with another attorney. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

§ 1952. Time of disclaimer - Delivery.

  1. Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be delivered, as to a present interest, not later than nine months after the death of the deceased owner or deceased donee of a power of appointment and, as to a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest is indefeasibly vested.  The disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative, or other fiduciary of the decedent or the donee of the power, to the holder of the legal title to which the interest relates, or to the person entitled to the property or interest in the event of disclaimer.  A copy of the disclaimer shall be filed in the Probate Division of the Superior Court of the district in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced.
  2. Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered, as to a present interest, not later than nine months after the effective date of the nontestamentary instrument or contract and, as to a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest indefeasibly vested.  If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered not later than nine months after he or she has actual knowledge of the existence of the interest.  The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to him or herself or another the entire legal and equitable ownership of the interest.  The disclaimer shall be delivered in person or mailed by registered or certified mail to the person who has legal title to or possession of the interest disclaimed.
  3. In any case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapter 11, 12, or 13 of the Internal Revenue Code of 1986, as amended, a disclaimer intended as a qualified disclaimer thereunder must specifically so state and must be delivered not later than nine months after the later of the date the transfer is made or the day on which the person disclaiming attains age 21.
  4. A surviving joint tenant or tenant by the entirety may disclaim as a separate interest any property or interest therein devolving to him or her by right of survivorship. A surviving joint tenant or tenant by the entirety may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy or tenancy by the entirety devolving to him or her, if the joint tenancy or tenancy by the entirety was created by act of a deceased joint tenant or tenant by the entirety and the survivor did not join in creating the joint tenancy or tenancy by the entirety.
  5. If real property or an interest therein is disclaimed, a copy of the disclaimer shall be recorded in the land records of the town in which the property or interest disclaimed is located.

    Added 1985, No. 130 (Adj. Sess.); amended 1991, No. 146 (Adj. Sess.), § 1, eff. April 28, 1992; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subsec. (c), substituted "the Internal Revenue Code of 1986" for "the Internal Revenue Code of 1954" to conform reference to redesignation of the Code pursuant to section (2)(a) of P.L. 99-514.

Reference in text. Chapters 11, 12 and 13 of the Internal Revenue Code of 1986, referred to in subsec. (c), are codified as 26 U.S.C. §§ 2001 et seq., 2501 et seq., and 2601 et seq., respectively.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1991 (Adj. Sess.) Subsec. (d): Inserted "or tenant by the entirety" following "joint tenant" in the first sentence and in two places in the second sentence, and "or tenancy by the entirety" following "joint tenancy" wherever it appeared in the second sentence.

Retroactive applicability. Act 1991, No. 146 (Adj. Sess.), § 2, eff. April 28, 1992, shall apply retroactively as a clarification of the provisions of the Uniform Disclaimer of Property Interests Act adopted July 1, 1986.

Cross References

Cross references. Land records of unorganized places, see § 403 of Title 27.

§ 1953. Form of disclaimer.

The disclaimer shall:

  1. describe the property or interest disclaimed;
  2. declare the disclaimer and extent thereof; and
  3. be signed by the disclaimant.

    Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

1. Sufficiency of disclaimer.

Disclaimer was plainly valid with regard to the specificity of the named property interest when a mother disclaimed "all right, title and interest" in her son's estate in the body of the disclaimer. This was sufficient for purposes of the statute regarding the form of a disclaimer, which did not require a list of particular assets to be disclaimed, but rather provided only that the disclaimer should "describe the property or interest disclaimed"; the fact that the disclaimer was drafted with a space where specific assets could be listed was of no consequence. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Cited. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1954. Effect of disclaimer.

  1. If the property or interest devolved to a disclaimant under testamentary instrument or under the laws of intestacy and the deceased owner or donee of a power of appointment has not provided for another disposition, it devolves as if the disclaimant had predeceased the decedent or, if the disclaimant was designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power.  Any future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest is indefeasibly vested.  A disclaimer relates back for all purposes to the date of death of the decedent, or of the donee of the power, or the determinative event, as the case may be.
  2. If the property or interest devolved to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for another disposition:
    1. it devolves as if the disclaimant had died before the effective date of the instrument or contract; and
    2. a future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest indefeasibly vested.  A disclaimer relates back for all purposes to the effective date of the instrument or contract or the date of the determinative event, as the case may be.
  3. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.

    Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

Analysis

1. Revocation of disclaimer.

Plain meaning of the statutory language of the Uniform Disclaimer of Property Interests Act precludes revocation; the statute proscribing the effect of disclaimers states that a disclaimer "is binding upon the disclaimant and all persons claiming through or under him or her." Moreover, the legislature provided no method for revoking disclaimers, which is indicative of a legislative intent to preclude revocation. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Disclaimant should be treated as if he or she had predeceased the decedent. The statutory language that "the property or interest devolved to a disclaimant under testamentary instrument or under the laws of intestacy ... devolves as if the disclaimant had predeceased the decedent" precludes the revival of the disclaimant's interest by revocation because the property interests of a deceased person are extinguished. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

2. Effect of disclaimer.

Where a disclaimant has absolved himself of any interest that was properly his by will or intestate succession, the disclaimant is deemed to have predeceased the decedent. Like the predeceased who, by operation of death, is precluded from asserting a claim against a decedent's estate, the disclaimant may not rise some time later to assert his rights as beneficiary. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Cited. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

§ 1955. Waiver and bar.

The right to disclaim property or an interest therein is barred by

  1. an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;
  2. an encumbrance, except that the lien for a writ of attachment or a judgment lien shall only bar a disclaimer to the extent of the amount of the lien;
  3. a written waiver of the right to disclaim;
  4. an acceptance of the property or interest or a benefit thereunder; or
  5. a sale of the property or interest under judicial sale made before the disclaimer is effected.

    Added 1985, No. 130 (Adj. Sess.).

§ 1956. Remedy not exclusive.

This chapter does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other provisions of law.

Added 1985, No. 130 (Adj. Sess.).

§ 1957. Application.

An interest in property that exists on July 1, 1986 as to which, if a present interest, the time for delivering a disclaimer under this chapter has not expired or, if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine months after July 1, 1986.

Added 1985, No. 130 (Adj. Sess.).

§ 1958. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

Added 1985, No. 130 (Adj. Sess.).

§ 1959. Short title.

This chapter may be cited as the Uniform Disclaimer of Property Interests Act.

Added 1985, No. 130 (Adj. Sess.).

CHAPTER 85. GENERAL PRINCIPLES

Sec.

§ 1971. Intentional killing; offender not to benefit.

  1. The acquisition of any property, interest, power, or benefit by a person as the result of the person's commission of an intentional and unlawful killing shall be treated in accordance with the principle that a killer cannot profit from his or her wrong, and a court shall have the power to distribute, reform, revoke, or otherwise dispose of such property, interest, power, or benefit in accord with the principles of this section.
  2. The distribution, reformation, revocation, or disposition of any property, interest, power, or benefit subject to subsection (a) of this section shall not affect any valid liens or mortgages on such property, interest, power, or benefit.

    Added 2009, No. 55 , § 3.

PART 4 Fiduciary Relations

CHAPTER 101. PROBATE BONDS; EXECUTORS, ADMINISTRATORS, TRUSTEES, GUARDIANS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 2101. Probate bonds; amount; sureties; for whose benefit; to whom taken.

Bonds required to be taken by order of the Probate Division of the Superior Court shall be for such sum and with such surety or sureties as the court directs, except where the law otherwise prescribes. The bonds shall be for the security and benefit of all persons interested and shall be taken to the Probate Division of the Superior Court except where they are to be taken to the adverse party.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3137. P.L. § 3052. G.L. § 3500. P.S. § 3018. V.S. § 2622. 1884, No. 110 , § 3. R.L. § 2301. G.S. 60, § 1. R.S. 56, § 1. 1821, p. 34. R. 1797, p. 221, § 26. R. 1787, p. 56.

Amendments--2017 (Adj. Sess.). Substituted "The" for "Such" preceding "bonds" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

ANNOTATIONS

1. Bond to probate court.

Bond filed in probate court, given to judge of probate by name, with a designation of his official character as judge of probate for that district, and in which the solvendum was "unto the said judge or his successor in said office," was, in legal effect, a bond to probate court. Probate Court v. Strong, 27 Vt. 202 (1853).

§ 2102. Foreign company; certificate of authority; fee.

A Probate Division of the Superior Court shall not accept a foreign fidelity insurance company as surety on a bond required to be filed in the court, unless the company is authorized to do business in this State and has filed in the court a certificate of the Commissioner of Financial Regulation that the company is so authorized. A fee of $1.00 for each certificate so issued shall be paid to the Commissioner of Financial Regulation for the benefit of the State by the company requesting its issuance.

Amended 1989, No. 225 (Adj. Sess.), § 25(b); 1995, No. 180 (Adj. Sess.), § 38(a); 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3138. P.L. § 3053. 1929, No. 47 , § 1. G.L. § 3501. 1917, No. 144 , § 1. 1917, No. 160 , § 2. P.S. § 3019. R. 1906, § 2900. 1904, No. 109 , § 1. 1900, No. 58 , § 2. 1898, No. 77 , §§ 1, 2.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section.

Amendments--2011 (Adj. Sess.). Substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1995 (Adj. Sess.) Substituted "commissioner of banking, insurance, securities, and health care administration" for "commissioner of banking, insurance, and securities" in the first and second sentences.

Amendments--1989 (Adj. Sess.). Substituted "commissioner of banking, insurance, and securities" for "commissioner of banking and insurance" wherever it appeared.

Statutory revision. 2011, No. 78 (Adj. Sess.), § 2 provides: "The legislative council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'commissioner of financial regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'department of financial regulation'".

Cross References

Cross references. Acceptance of foreign surety bond without certificate, see Rule 68(c), Vermont Rules of Probate Procedure.

§ 2103. Record; evidence.

Upon acceptance and approval of bonds required to be given to a Probate Division of the Superior Court, the bonds shall be filed and docketed in the office of the court to which they are given. A copy of the bond duly certified by the court shall be evidence in all cases as to the facts stated in it, as though the original were produced.

Amended 1971, No. 179 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3139. P.L. § 3054. G.L. § 3502. P.S. § 3020. 1900, No. 37 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section; substituted "of the bond" for "thereof" preceding "duly"; deleted "therein" preceding "stated" and inserted "in it" following "stated".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1971 (Adj. Sess.). Substituted "docketed" for "recorded" following "filed and" in the first sentence.

§ 2104. Motion, when bond is insufficient.

If a surviving spouse, heir, creditor, devisee, or legatee of a decedent or their legal representatives, or a person interested in a trust estate, considers the bond given to the Probate Division of the Superior Court by a fiduciary insufficient, they may file a motion for an additional bond. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. If it appears to the court that the bond is not sufficient, it shall order the fiduciary to give a new and sufficient bond within the time limited. If the new bond is not filed within that new time, the court shall remove the fiduciary and fill the vacancy.

Amended 1985, No. 144 (Adj. Sess.), § 92; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3140. P.L. § 3055. G.L. § 3503. P.S. § 3021. 1904, No. 71 , § 1. V.S. § 2623. 1888, No. 81 , §§ 3, 4. R.L. § 2302, G.S. 48, § 45. 1842, No. 21 . R.S. 111, § 12. 1821, p. 35. R. 1797, p. 242, § 72. R. 1797, p. 246, § 76.

Revision note. In the section heading, substituted "Motion" for "Petition" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Deleted "thereupon" preceding "schedule" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 2105. Surety may move for new bond and settlement; removal.

If the surety for a fiduciary considers himself or herself in danger of being injured thereby, a motion may be filed to order the fiduciary to settle the account and give a new bond. Upon notice and hearing, if it appears to the Probate Division of the Superior Court that the surety is in danger of being injured, it shall order the fiduciary to settle the account and give a new bond. When a new bond is filed and approved, the surety shall be discharged. If the fiduciary does not settle the accounts and give a new bond when so ordered, the court shall remove the fiduciary and fill the vacancy.

Amended 1985, No. 144 (Adj. Sess.), § 93; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3141. P.L. § 3056. G.L. § 3504. P.S. § 3022. 1904, No. 71 , § 2. V.S. § 2624. 1888, No. 81 , §§ 3, 4. R.L. § 2302. G.S. 48, § 45. 1842, No. 21 . R.S. 111, § 12. 1821, p. 35. R. 1797, p. 242, § 72. R. 1797, p. 246, § 76.

Revision note. In the section catchline, substituted "move" for "petition" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Deleted "probate division of the superior" preceding "court" in the fourth sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

1. Discharge of surety.

Surety on bond of a special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by this section, and so, where a special administrator continues to act as such after final establishment of will naming him as executor, surety on his official bond remains liable. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

§ 2106. New bond.

When a fiduciary desires to file a new bond with sureties in substitution for the bond then on file, the Probate Division of the Superior Court, in its discretion and upon notice, may allow a new bond to be filed. Upon approving the new bond, the court may accept it in substitution for any and all bonds previously filed by the fiduciary and discharge the sureties on the former bond or bonds from liability accruing after the substituted bond is filed.

Amended 1985, No. 144 (Adj. Sess.), § 94; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3143. P.L. § 3058. G.L. § 3506. P.S. § 3024. 1904, No. 71 , § 4.

Amendments--2017 (Adj. Sess.). Substituted "it" for "the same" following "accept".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 2107. Discharge of executor, administrator, trustee, guardian; account; exoneration of surety.

When an executor, administrator, trustee, or guardian has paid and delivered over to the persons entitled to it the money or other property in his or her hands as required by a decree of the Probate Division of the Superior Court, he or she may perpetuate the evidence thereof by presenting to the court within one year after the decree is made or within a time thereafter that the court allows, an account of the payment or the delivery over of the property. If it is proved to the satisfaction of the court and verified by the oath of the accountant, the account shall be allowed as his or her final discharge and ordered to be recorded. The discharge shall forever exonerate the accountant and his or her sureties from liability under the decree, unless his or her account is impeached for fraud or manifest error.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3142. P.L. § 3057. G.L. § 3505. P.S. § 3023. 1904, No. 71 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 2108. How prosecuted.

Bonds given to the Probate Division of the Superior Court shall be prosecuted in the Superior Court of the county in which they were given for the benefit of those injured by the breach of their conditions, in the following manner:

  1. A person claiming to be injured by a breach of the condition of a bond may file a motion for permission to prosecute the bond and shall give a bond to the adverse party to the satisfaction of the Probate Division of the Superior Court, on the condition that he or she will prosecute it to effect and pay the costs awarded if recovery is not obtained.
  2. The Probate Division of the Superior Court shall grant permission to prosecute the bond, and when the fees have been paid, shall furnish to the applicant a certified copy of the bond, with a certificate that leave to prosecute it has been granted, and the name and residence of the applicant.
  3. The applicant shall cause his or her name to be indorsed as prosecutor upon the writ and shall file the copy of the bond and the certificate furnished by the Probate Division of the Superior Court, with the writ, in the Superior Court to which and when it is returnable; and the applicant shall be deemed to be the prosecutor of the bond.
  4. The complaint on the bond shall definitely assign and set forth the breaches of the conditions on which the prosecutor relies.
  5. The Superior Court to which the writ is returned shall render judgment, as on default, for the penalty of the bond in favor of the Probate Division of the Superior Court and against the defendants, or those defendants who do not comply with the terms provided in subdivision (6) of this section, but costs shall not be taxed on the judgment.
  6. The defendants who wish to resist the judgment shall, on or before 21 days after service of the writ, plead a general denial, and, with their plea, file their affidavit, stating that they believe or are advised that they did not execute or deliver the bond; or they shall demur to the complaint.
  7. On trial, if the issue on the plea or demurrer is found in favor of the plaintiff, judgment shall be rendered for the penalty of the bond, as provided in subdivision (5) of this section, and the prosecutor shall recover against the defendants entering the plea or demurrer the costs of the action, and have execution for them in his or her own name.
  8. When judgment is rendered for the penalty of the bond against all the defendants, the judgment shall remain in force as security for other breaches of the conditions of the bond, which may be afterwards assigned and proved.
  9. The action shall thereafter proceed and be prosecuted in the name of the prosecutor, on the breaches assigned. Upon prevailing, the prosecutor shall have judgment in his or her own name for damages and costs, but if judgment is rendered for the defendants on an issue joined in the action or on nonsuit, they shall recover double costs against the prosecutor.

    Amended 1985, No. 144 (Adj. Sess.), § 95; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3144. 1947, No. 202 , § 3167. 1945, No. 29 , § 31. P.L. § 3059. G.L. § 3507. P.S. § 3025. V.S. § 2625. R.L. § 2303. G.S. 60, § 2. R.S. 56, § 2. 1821, p. 34. R. 1797, p. 260, § 103.

Revision note. In subdiv. (1), deleted a comma following "condition of a bond" for purposes of clarity.

In subdiv. (5), substituted "subdivision (6) of this section" for "the following subdivision of this section" for purposes of clarity.

In subdiv. (7), substituted "subdivision (5) of this section" for "the fifth subdivision of this section" to conform reference to V.S.A. style.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" throughout the section.

Amendments--1985 (Adj. Sess.). Rewrote the section heading, substituted "superior" for "county" preceding "court of the county" in the introductory paragraph, rewrote subdiv. (1), deleted "his" preceding "paying" and "thereupon" preceding "grant" and substituted "permission" for "leave" thereafter in subdiv. (2), inserted "or her" following "his" and substituted "superior" for "county" preceding "court to which" in subdiv. (3), substituted "superior" for "county" preceding "court to which" in subdiv. (5), inserted "or her" following "his" at the end of subdiv. (7), and rewrote the second sentence of subdiv. (9).

Cross References

Cross references. Actions upon bonds, see § 2303 of this title.

Pleadings generally, see Rules 7-10, Vermont Rules of Probate Procedure.

Presentation of defenses and objections, see Rule 12, Vermont Rules of Probate Procedure.

Signing of pleadings, see Rule 11, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Section 2303 of this title, providing that bond of a trustee appointed under provisions in a will could be sued when court of chancery upon proper application so ordered, did not give court of chancery exclusive power over subject, but a power concurrent with that of probate court, provided in this section. Robinson v. Stanley, 38 Vt. 570 (1866).

2. Law governing.

Creditor who had proved his claim against an estate in the jurisdiction of principal administration in Wisconsin, was not entitled to prosecute an administrator's bond given on grant of ancillary administration in this state, alleged breach whereof was nonpayment of a balance found in hands of ancillary administrator on settlement of his administration account, and ordered by probate court to be paid over to the principal administrator in Wisconsin, by reason of which nonpayment principal administrator was unable to pay prosecutor's claim. Probate Court v. Brainard, 48 Vt. 620 (1876).

3. Prosecution of bond .

In an action on a probate bond county court had authority to cause name of prosecutor to be stricken from record, when he had not complied with this section, nor made application to probate court for leave to prosecute; nor given a bond to adverse party. Probate Court v. Hull, 58 Vt. 306, 3 A. 472 (1885).

It was not essential to maintenance of a suit upon a bond taken to probate court, that a copy of bond, and certificate of leave from probate court to prosecute it, should be filed in county court at same time when the writ was returned there. Probate Court v. Niles, 32 Vt. 775 (1860).

*4. By prosecutor.

Probate court cannot, per se, move in prosecution of probate bonds, since prosecutor is real plaintiff; and he must be one who bears such relation to alleged breaches of condition of bond, that he may have been injured thereby; and his right to prosecute must appear from declaration, or declaration will be demurrable. Probate Court v. Brainard, 48 Vt. 620 (1876).

*5. Name in which prosecuted.

When leave was granted to attorney of several heirs to prosecute a probate bond for them, it was not necessary that his name be endorsed on writ. Probate Court v. Sawyer, 59 Vt. 57, 7 A. 281 (1886).

When an applicant prosecutes a bond, having obtained permission from probate court, and neglects to cause his name to be indorsed on writ, as prosecutor of the same, and case passes to subsequent terms of court, it may be waiver of objection. Probate Court v. Strong, 24 Vt. 146 (1852).

6. Pleading.

In an action on appeal bond, where defendant proceeded to trial without demurrer to declaration, lack of particularity in assignments of breach was cured by verdict, and so could not be questioned by a motion in arrest of judgment. Probate Court v. Dodge, 87 Vt. 133, 88 A. 529 (1913).

7. Evidence.

In a suit on a probate bond for benefit of a creditor, breach assigned being the nonpayment of a dividend struck in the probate court, and on plea of payment, receipts showing payment to plaintiff by a former administrator were admissible in evidence. Gordon v. Clapp, 5 Vt. 129 (1833).

8. Appeal.

Ordinarily, supreme court would treat as a misentry a case coming up from a judgment of county court for penalty of a probate bond before damages were ascertained; but where case was fully argued, and views of court would finally determine it, it was made an exception to the general rule, and heard. Probate Court v. Brainard, 48 Vt. 620 (1876).

§ 2109. Person injured; action on bond or judgment.

After a person is injured by the breach of the condition of the bond, he or she may bring from time to time an action in his or her own name on the judgment rendered for the penalty of the bond. In that action, he or she shall assign and set forth the breaches on which he or she relies and may recover the damages that he or she proves, with costs.

Amended 1971, No. 185 (Adj. Sess.), § 177, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3145. P.L. § 3060. G.L. § 3508. P.S. § 3026. V.S. § 2626. R.L. § 2304. G.S. 60, § 3. R.S. 56, § 3. 1821, p. 35. R. 1797, p. 260, § 103.

Amendments--2017 (Adj. Sess.). Substituted "the damages that" for "such damage as" following "recover".

Amendments--1971 (Adj. Sess.). Substituted "bring" for "sue out and prosecute" preceding "from time to time" and "an action" for "a scire facias" thereafter in the first sentence, and substituted "that action" for "such scire facias" preceding "he shall" and made a minor change in punctuation in the second sentence.

ANNOTATIONS

Cited. Hoit v. Bradley, 1 D. Chip. 262 (1814).

§ 2110. Claims for breach may be prosecuted by representatives.

Claims for damages for breach of the conditions of a bond may be prosecuted by an executor, administrator, or guardian in behalf of those he or she represents, in the same manner as by persons living. The claims may be prosecuted against the representatives of deceased persons as other claims against decedents.

Amended 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3146. P.L. § 3061. G.L. § 3509. P.S. § 3027. V.S. § 2627. R.L. § 2305. G.S. 60, § 4. R.S. 56, § 4.

Amendments--2017 (Adj. Sess.). Substituted "The" for "Such" preceding "claims".

ANNOTATIONS

1. Nature of remedy.

By suing on an executor's bond, under this section, an administrator de bonis non of testator's widow, appointed after executor's defalcation, did not waive right, given to such widow by section 1721 of this title, to demand and receive the estate decreed to her from any other person having some in his possession, and a surety, lawfully required to pay such legacy, by subrogation has same right. Hall v. Windsor Savings Bank, 97 Vt. 125, 121 A. 582, 124 A. 593 (1923).

CHAPTER 103. MORTGAGES AND LEASES BY EXECUTORS, ADMINISTRATORS, TRUSTEES, OR GUARDIANS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Mortgages generally, see 27 V.S.A. § 441 et seq..

Sale of realty held by executor or administrator under mortgage, see § 1655 of this title.

§ 2201. Mortgage of property by fiduciary; motion; order; license.

  1. On motion and with the written consent of the interested persons, or after hearing, the Probate Division of the Superior Court may authorize a fiduciary to mortgage any of the real estate or to mortgage, pledge, or assign any of the personalty of the estate for the benefit of the estate. The court may authorize a fiduciary to enter into an agreement for the extension or renewal of an existing mortgage or lien or of any other mortgage, lien, pledge, or assignment created under the provisions of this chapter.
  2. A motion filed under this section shall describe the property to be mortgaged, pledged, or assigned and shall include the purpose of the obligation, the limits of the principal amount, the interest rate, and the term of the note to be secured by the mortgage. A license issued by the Probate Division pursuant to this section shall fix the terms and conditions under which the property may be mortgaged, pledged, or assigned. The court may order all or any part of the obligation secured by the mortgage to be paid from time to time out of the income of the property mortgaged. A certified copy of the license shall be recorded in the office where the mortgage is recorded.

    Amended 1985, No. 144 (Adj. Sess.), § 96; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 14.

History

Source. V.S. 1947, § 2976. P.L. § 2909. G.L. § 3363. 1912, No. 111 . 1908, No. 73 , § 1.

Revision note. In the section heading, substituted "fiduciary" for "executor, administrator, trustee, or guardian" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

0.5. Construction.

Plain language of the licensing statutes does not distinguish between guardians in voluntary or involuntary guardianships. Instead, the statutes refer generally to "guardians" or "fiduciaries," which include guardians. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

1. Proof of license.

Mortgagee, in seeking to take advantage of a license to mortgage property issued by the probate court, had the burden of establishing that the license was issued within the authorization of the statutes and met the legal requirements of a valid license authorizing the execution of mortgages to the mortgagee. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

2. Guardian's powers.

Where, on the face of the record, it was beyond the power of claimed legal guardian to consent to and approve the granting of the license to mortgage on behalf of her minor devisees, the acceptance of the probate court of the application with such consent and approval as guardian was not to be taken in the nature of a decree or a valid license in that respect. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

3. Approval of court.

When it was undisputed that the guardian in a voluntary guardianship failed to comply with the statute requiring probate court approval for the issuance of a mortgage deed, the mortgage deed was therefore ineffective. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

Licensing statutes for guardianships do give the probate court the authority to restrict the terms of the underlying note as a condition of its approval of a mortgage; the court may withhold approval of a mortgage deed if the guardian fails to conform the underlying note to the court's requirements. But it does not follow that the statutes require probate court approval of a promissory note in its own right, rather than as a condition to the approval of a mortgage deed. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

4. Applicability.

Vermont Supreme Court rejects the suggestion that the licensing requirements pertaining to guardians do not apply when a ward subject to a voluntary guardianship, as opposed to the guardian, seeks to sell property. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

§ 2202. Repealed. 2017, No. 195 (Adj. Sess.), § 14.

History

Former § 2202. Former § 2202, relating to motions and decrees, was derived from V.S. 1947, § 2977; P.L. § 2910; G.L. § 3364; 1908, No. 73 , § 2 and amended by 1985, No. 144 (Adj. Sess.), § 97; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2202

1. Applicability.

Vermont Supreme Court rejects the suggestion that the licensing requirements pertaining to guardians do not apply when a ward subject to a voluntary guardianship, as opposed to the guardian, seeks to sell property. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

2. Approval of court.

Licensing statutes for guardianships do give the probate court the authority to restrict the terms of the underlying note as a condition of its approval of a mortgage; the court may withhold approval of a mortgage deed if the guardian fails to conform the underlying note to the court's requirements. But it does not follow that the statutes require probate court approval of a promissory note in its own right, rather than as a condition to the approval of a mortgage deed. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

§ 2203. Lease; of property by fiduciary; order; license.

  1. On motion and with the written consent of the interested parties, or after hearing, the Probate Division of the Superior Court may authorize a fiduciary to lease all or part of the real or personal property of the estate for the benefit of the estate. The court may authorize a fiduciary to enter into an agreement for the extension or renewal of an existing lease, or of any other lease created under the provisions of this chapter. A lease for a period of less than seven consecutive months shall not require a license.
  2. A motion filed under this section shall describe the property to be leased and shall include the prospective lessee, if known, the proposed use of the leased property, the limits of the proposed term of the lease, and the proposed rental. A license issued by the Probate Division of the Superior Court pursuant to this section shall fix the terms and conditions under which the property may be leased.

    Amended 1985, No. 144 (Adj. Sess.), § 98; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 14.

History

Source. V.S. 1947, § 2978. 1947, No. 202 , § 3001. P.L. § 2911. G.L. § 3365. 1908, No. 73 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion of a fiduciary" for "the petition of an executor, administrator, trustee or guardian" following "upon" and "the fiduciary" for "he" preceding "considers" and made other minor stylistic changes.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

Service of motion for license to lease real or personal estate, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 2204. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 2204, relating to notices, was derived from V.S. 1947, § 2979; P.L. § 2912; G.L. § 3366; 1908, No. 74 .

CHAPTER 105. TRUSTS AND TRUSTEES

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Embezzlement by trustee, see § 2533 of Title 13.

ANNOTATIONS

1. Jurisdiction of probate court.

A probate court clearly has jurisdiction to order an accounting by the trustee under a will. In re Trusts u/w Proctor, 140 Vt. 6, 433 A.2d 300 (1981).

§ 2301. Repealed. 2009, No. 20, § 7.

History

Former § 2301, relating to trustees; bond; when required, was derived from V.S. 1947, § 3106; P.L. § 3022; G.L. § 3472; 1915, No. 99 ; P.S. § 2990; V.S. § 2600; R.L. § 2284; G.S. 59, § 1; 1861, No. 18 , § 1; R.S. 55, § 1 and amended by 1985, No. 144 (Adj. Sess.), § 99.

Annotations From Former § 2301

1. Change in circumstances.

Where will, in creating a trust, directed that trustee named shall not be required to give bonds, and trustee entered upon trust in accordance therewith, probate court could require of such trustee a bond, in view of a subsequent change in his circumstances. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Where one was both executor and trustee, and by will was not required to execute a bond, probate court, if deemed proper from a subsequent change of executor's circumstances, could order him to give a bond; and such order was not appealable to county court. Felton v. Sowles, 57 Vt. 382 (1885).

Cited. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 2302. Repealed. 2009, No. 20, § 8.

History

Former § 2302, relating to conditions, was derived from V.S. 1947, § 3108; P.L. § 3024; 1933, No. 157 , § 2811; G.L. §§ 3473, 3474; P.S. § 2991; V.S. § 2601; R.L. § 2285; G.S. 59, § 3; R.S. 55, § 2.

§ 2303. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former § 2303. Former § 2303, relating to bond filing and suit, was derived from V.S. 1947, § 3108; P.L. § 3024; 1933, No. 157 , § 2811; G.L. § 3474; P.S. § 2992; V.S. § 2602; R.L. § 2286; G.S. 59, § 2; 1861, No. 18 , § 2 and amended by 1971, No. 179 (Adj. Sess.), § 8; 1973, No. 193 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 100; 2009, No. 154 (Adj. Sess.), § 238a.

§ 2304. Repealed. 2009, No. 20, § 9.

History

Former § 2304, relating to bond when more than one trustee, was derived from V.S. 1947, § 3109; P.L. § 3025; G.L. § 3475; P.S. § 2993; V.S. § 2603; R.L. § 2287; G.S. 59, § 4; R.S. 55, § 3.

§§ 2305-2310. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former §§ 2305-2310. Former § 2305, relating to trustees of absent persons - Definition, was derived from V.S. 1947, § 3110; P.L. § 3026; G.L. § 3476; P.S. § 2994; 1906, No. 86 , § 1; V.S. § 2604; 1884, No. 110 , § 1 and amended by 2009, No. 154 (Adj. Sess.), § 238a; 2013, No. 96 (Adj. Sess.), § 63.

Former § 2306, relating to trustees; appointment over absent person's estate, was derived from V.S. 1947, § 3111; P.L. § 3026; G.L. § 3476; P.S. § 2994; 1906, No. 86 , § 1; V.S. § 2604; 1884, No. 110 , § 1 and amended by 1967, No. 147 , §§ 13, 53(b); 1985, No. 144 (Adj. Sess.), § 101; 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2307, relating to notice of appointment; account; payment to trustee; appeal, was derived from V.S. 1947, § 3112; P.L. § 3027; G.L. § 3477; P.S. § 2995; 1906, No. 86 , § 3 and amended by 1985, No. 144 (Adj. Sess.), § 102; 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2308, relating to powers of trustees for absent persons, was derived from V.S. 1947, § 3113; P.L. § 3028; G.L. § 3478; P.S. § 2996; V.S. § 2605; 1884, No. 110 , § 4.

Former § 2309, relating to claims against estate of absent person; procedure, was derived from V.S. 1947, § 3114; P.L. § 3029; G.L. § 3479; P.S. § 2997; V.S. § 2606; 1884, No. 110 , § 5.

Former § 2310, relating to appearance of absent person; surrender of property, was derived from V.S. 1947, § 3115; P.L. § 3030; G.L. § 3480; P.S. § 2998; 1906, No. 86 , § 2; V.S. § 2607.

§ 2311. Repealed. 2009, No. 20, § 10.

History

Former § 2311, relating to trustees of nonresident decedents; nonresident trustee; decree, was derived from V.S. 1947, § 3116; P.L. § 3031; 1931, No. 42 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 103.

§ 2312. Repealed. 2009, No. 20, § 11.

History

Former § 2312, relating to trustee failing to give bond; effect, was derived from V.S. 1947, § 3117; P.L. § 3032; G.L. § 3481; P.S. § 2999; V.S. § 2608; R.L. § 2288; G.S. 59, § 5; R.S. 55, § 4.

Annotations From Former § 2312

1. Removal.

Where trustee neglected to furnish a bond in compliance with the order, he became subject to removal under this section. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Cited. Citibank, N.A. v. Nichols, 151 Vt. 220, 559 A.2d 156 (1989).

§ 2313. Repealed. 2009, No. 20, § 12.

History

Former § 2313, relating to resignation, removal and appointment of trustees; trustee may decline or resign, was derived from V.S. 1947, § 3118; P.L. § 3033; G.L. § 3482; P.S. § 3000; V.S. § 2609; R.L. § 2289; G.S. 59, § 6; R.S. 55, § 5.

§ 2314. Repealed. 2009, No. 20, § 13.

History

Former § 2314, relating to trustee may be removed; special fiduciary; petition for removal by beneficiary or co-trustee, was derived from V.S. 1947, § 3119; P.L. § 3034; G.L. § 3483; P.S. § 3001; 1896, No. 47 , §§ 1, 2; V.S. § 2610; R.L. § 2290; 1867, No. 52 ; G.S. 59, § 7; R.S. 55, § 6 and amended by 1985, No. 144 (Adj. Sess.), § 104; 2003, No. 106 (Adj. Sess.), § 2; 2005, No. 213 (Adj. Sess.), § 2.

Annotations From Former § 2314

1. Notice.

Trustee must be removed upon notice as provided in this section; a trusteeship does not become vacant ipso facto. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Cited. In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984 (1992).

§ 2315. Repealed. 2009, No. 20, § 14.

History

Former § 2315, relating to additional trustee may be appointed, was derived from V.S. 1947, § 3120; P.L. § 3035; G.L. § 3484; P.S. § 3002; 1896, No. 48 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 105.

§ 2316. Repealed. 2009, No. 20, § 15.

History

Former § 2316, relating to vacancy, new trustee appointed, was derived from V.S. 1947, § 3121; P.L. § 3036; G.L. § 3485; P.S. § 3003; V.S. § 2611; R.L. § 2291; G.S. 59, § 8; R.S. 55, § 7 and amended by 1985, No. 144 (Adj. Sess.), § 106.

Annotations From Former § 2316

1. Provision in will.

This section was not material where authority of trustee relative to matters under consideration came to it by way of will. In re Trust Estate of Houghton, 118 Vt. 228, 105 A.2d 257 (1954).

2. Heirs as trustees pursuant to will.

Discretionary powers given to a trustee in a will, and also expressly given to his heirs, could after his decease be exercised by his heirs; in such case all the heirs should be appointed trustees. Williams v. Moliere, 60 Vt. 378, 15 A. 192 (1888).

§ 2317. Repealed. 2009, No. 20, § 16.

History

Former § 2317, relating to authority of new trustee; conveyance to, was derived from V.S. 1947, § 3122; P.L. § 3037; G.L. § 3486; P.S. § 3004; V.S. § 2612; R.L. § 2292; G.S. 59, § 9; R.S. 55, § 8.

Annotations From Former § 2317

1. Effect of provision in will.

This section need not be considered in construction of the successor trustee's powers wholly derived from the will. In re Estate of Boutwell, 112 Vt. 159, 22 A.2d 157 (1941).

§ 2318. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former § 2318. Former § 2318, relating to other trustees, was derived from V.S. 1947, § 3123; P.L. § 3038; G.L. § 3487; P.S. § 3005; V.S. § 2613; R.L. § 2293; G.S. 48, § 46; 1851, No. 19 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2318

1. Construction.

Word "descends," as used in this section, is to be construed in accordance with the canon of construction, that, if words taken in their technical sense will make a statute inoperative in whole or in part, they will be taken in their popular sense. Mitchell v. Blanchard, 72 Vt. 85, 47 A. 98 (1899).

2. Application.

This section applied when use passed by will, as well as where it passed by operation of law. Mitchell v. Blanchard, 72 Vt. 85, 47 A. 98 (1899); Morse v. Stoddard's Estate, 90 Vt. 479, 98 A. 991 (1916).

3. Authority of court.

Where will gave certain property to person "to be used for his own personal benefit so far as he requires it," with remainder, if any, at his death to another, probate court had authority under this section to appoint a trustee to handle property, and application for such appointment was addressed to discretion of probate court. In re Robinson's Will, 101 Vt. 464, 144 A. 457 (1929).

Probate court had power to appoint a trustee of estate of which a beneficiary under a will had life use, and to enforce the trust. In re Cary's Estate, 81 Vt. 112, 69 A. 736 (1908).

This section, in giving probate court same power as to enforcement of trusts therein mentioned that it had in case of guardians of minor children, conferred upon it ample power to compel discovery in respect to such trusts. Mitchell v. Blanchard, 72 Vt. 85, 47 A. 98 (1899).

4. Life estate to receive support.

A mere right in one holding a life estate in personal property to receive support out of the principal if necessary did not take the case out of the operation of this section. Morse v. Stoddard's Estate, 90 Vt. 479, 98 A. 991 (1916).

§ 2319. Repealed. 2009, No. 20, § 17.

History

Former § 2319, relating to bonds, was derived from V.S. 1947, § 3124; P.L. § 3039; G.L. § 3488; P.S. § 3006; V.S. § 2614; 1884, No. 110 , § 2; R.L. § 2294. G.S. 59, § 10; R.S. 55, § 9.

§ 2320. Repealed. 2009, No. 20, § 18.

History

Former § 2320, relating to duties of trustees and settlement of account; inventory and appraisal, was derived from V.S. 1947, § 3125; P.L. § 3040; G.L. § 3489; P.S. § 3007; V.S. § 2615; 1884, No. 110 , § 6; R.L. § 2295. G.S. 59, § 11; R.S. 55, § 10 and amended by 1985, No. 144 (Adj. Sess.), § 107.

§ 2321. Repealed. 2009, No. 20, § 19.

History

Former § 2321, relating to duties of trustees; property kept separate, was derived from V.S. 1947, § 3126; P.L. § 3041; G.L. § 3490; 1915, No. 100 ; P.S. § 3008; V.S. § 2016; R.L. § 2296.

Annotations From Former § 2321

1. Preservation of assets.

It is the duty of the trustee to preserve the assets of the trust so that the purposes of the trust will endure and not be jeopardized. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

§ 2322. Repealed. 2009, No. 20, § 20.

History

Former § 2322, relating to license; sale and investment of estate; support of family, was derived from V.S. 1947, § 3127; P.L. § 3042; 1921, No. 79 , § 1. G.L. § 3491; P.S. § 3009; V.S. § 2617; 1884, No. 110 , § 7; R.L. § 2297; G.S. 59, § 12; R.S. 55, § 11 and amended by 1985, No. 144 (Adj. Sess.), § 108.

Annotations From Former § 2322

1. Construction.

Words of this section were permissive in character, and enabled a trustee, contemplating a sale of personal property, to apply to the probate court and get a determination by that court that such sale was beneficial to the trust estate, that is, necessary or desirable. In re Wellman Estate, 119 Vt. 426, 127 A.2d 279 (1956).

2. Sale without license.

Fact that a trustee failed to get a license under this section to sell personal property in no way lessened his power to make such a sale, but merely left open question of whether power had been properly exercised. In re Wellman Estate, 119 Vt. 426, 127 A.2d 279 (1956).

3. Effect of license on trustee's liability.

By applying for a license under this section and obtaining a determination by probate court that a sale of trust assets was beneficial to trust, the trustee avoided possibility that its act in that regard would be later called in question by those interested in trust estate. In re Wellman Estate, 119 Vt. 426, 127 A.2d 279 (1956).

§ 2323. Repealed. 2009, No. 20, § 21.

History

Former § 2323, relating to sale of real property; order of court; regulations, was derived from V.S. 1947, § 3128; P.L. § 3043; 1921, No. 79 , § 2 and amended by 1985, No. 144 (Adj. Sess.), § 109.

§ 2324. Repealed. 2009, No. 20, § 22.

History

Former § 2324, relating to accounts, time, was derived from .S. 1947, § 3129; P.L. § 3044; 1923, No. 53 , § 3. 1919, No. 88 , § 3; G.L. § 3492; P.S. § 3010; V.S. § 2618; 1892, No. 50 and amended by 1985, No. 144 (Adj. Sess.), § 110.

Annotations From Former § 2324

1. Res adjudicata.

An accounting of trustee is not res adjudicata as against the parties unless the proceedings clearly disclose the transactions intended to be embraced therein and burden is on person claiming an estoppel by judgment to establish such disclosure. In re Estate of Valiquette, 122 Vt. 362, 173 A.2d 832 (1961).

§ 2325. Repealed. 2009, No. 20, § 23.

History

Former § 2325, relating to examinations of trustee, was derived from V.S. 1947, § 3130; P.L. § 3045; G.L. § 3493; P.S. § 3011; V.S. § 2619; R.L. § 2298; G.S. 54, § 10; 1856, No. 13 ; 1846, No. 15 and amended by 1985, No. 144 (Adj. Sess.), § 111.

Annotations From Former § 2325

1. Trustee as witness.

In settlement of a trustee's account, trustee himself was a competent witness to all matters touching management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 2326. Repealed. 2009, No. 20, § 24.

History

Former § 2326, relating to right of surety on accounting, was derived from V.S. 1947, § 3131; P.L. § 3046; G.L. § 3494; P.S. § 3012; V.S. § 2620; R.L. § 2299; 1876, No. 84 and amended by 1985, No. 144 (Adj. Sess.), § 112.

§ 2327. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former § 2327. Former § 2327, relating to further powers of court; equity powers, was derived from V.S. 1947, § 3132; P.L. § 3047; G.L. § 3495; P.S. § 3013; V.S. § 2621; R.L. § 2300; G.S. 59, § 13; R.S. 55, § 12 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2327

1. Equity powers .

Inherently, as well as by statute, probate courts have general equity powers to hear and determine matters relating to testamentary trusts that develop in the settlement of estates. In re Bayley Trust, 127 Vt. 380, 250 A.2d 516 (1969).

Probate court had general equity powers in regard to trusts and trust funds that arose in the settlement of estates. Manley v. Brattleboro Trust Co., 116 Vt. 460, 78 A.2d 488 (1951).

*2. Limitations.

This section, which provides that probate court may hear and determine in equity matters relating to trusts, does not empower probate court to deal with all matters relating to testamentary trusts; the section merely allows a probate court to invoke certain equitable remedies required to deal adequately with those matters properly before it, matters which are restricted to overseeing the affairs of officials, such as testamentary trustees and executors, appointed by the court itself, and property in the trustees' hands. In re Trusts u/w Proctor, 140 Vt. 6, 433 A.2d 300 (1981).

Court does not have power to modify the donor's primary end but will go a long way in an effort to carry it out. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

A court may not impose restrictions upon a trust or read into it a provision which from language of the trust deed, or the charter, are not evident, or intended by the donor. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

General equity powers of probate court were not as extensive as full powers of the court of chancery and probate courts did not have all means employed by courts of chancery to enforce their decisions. Manley v. Brattleboro Trust Co., 116 Vt. 460, 78 A.2d 488 (1951).

Probate courts, of necessity, possessed a portion of equitable powers independent of statute; however, equity powers enjoyed by probate courts did not extend to establishment of purely equitable claims and rights. In re Will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

3. Discretion of trustee.

Where discretion is conferred upon the trustees of a charitable trust with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse of discretion. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

§ 2328. Repealed. 2009, No. 20, § 25.

History

Former § 2328, relating to trusts, devise or bequest for charity, cy pres, was derived from V.S. 1947, § 1282; 1945, No. 37 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 113.

Annotations From Former § 2328

1. Construction with other laws.

This section, expressly giving county court cy pres jurisdiction, governed as against section 219 of Title 4, giving probate judges the powers of a chancellor in equity in passing upon all civil matters coming before them, so that county court, not probate court, was the place to decide a cy pres issue. In re Estate of Leonard, 132 Vt. 348, 318 A.2d 179 (1974).

2. Particular trusts.

Where payments for books and repairs for library were the expressed and specific purposes of trust and no general charitable intent appeared, and there was to be an annual payment of a sum not to exceed $ 400 from income or principal, and clause provided that trustees may pay over the unexpended balance in any year, and present large balances were due in large measure to dereliction of trustees in not paying over funds upon request of the library trustees under the discretionary payment clause, it could not be said the purpose of the trust was impossible or impracticable of enforcement and trustees of the trust could not have cy pres doctrine applied. In re Jones, 138 Vt. 223, 415 A.2d 202 (1980).

Where there was nothing in terms of trust, established for the support of "school of learning and education . . . and for no other purpose," which provided for forfeiture or reverter or gift over in the event the specified purpose should fail, fact that trust provided for principal objective "and for no other purpose," would not preclude a more general charitable intention on the part of the settlor and the interests provided for would be protected by the application of the doctrine of cy pres. Ball v. Hall, 129 Vt. 200, 274 A.2d 516 (1971).

Cited. In re Trusts u/w Proctor, 140 Vt. 6, 433 A.2d 300 (1981).

§ 2329. Testamentary additions to trusts; pour over trusts.

A devise or bequest, the validity of which is determinable by the law of this State, may be made by a will to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person or persons or by some other person or persons, including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator's will or in the valid last will of a person who has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator. Unless the testator's will provides otherwise, the property so devised or bequeathed: (a) shall not be deemed to be held under a testamentary trust of the testator, but shall become a part of the trust to which it is given; and (b) shall be administered and disposed of in accordance with the provisions of the instrument or a will of a person other than the testator setting forth the terms of the trust, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator's will, and, if the testator's will so provides, including any amendments to the trust made after the death of the testator. A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse. However, when the testator's will specifically sets forth the terms of the trust, whether or not the trust is subsequently amended, revoked, or terminated, the property devised or bequeathed under the will shall be deemed to be held under a testamentary trust of the testator and shall be administered and disposed of in accordance with the provision of the testator's will.

Added 1961, No. 208 , § 1, eff. July 11, 1961; amended 2017, No. 195 (Adj. Sess.), § 15.

History

Amendments--2017 (Adj. Sess.). Substituted "the trust" for "such trust" in the fifth sentence.

Application. 1961, No. 208 , § 2, provided that this section would apply to any devise or bequest made by a will executed before or after July 11, 1961.

CHAPTER 107. TRUSTS AND TRUSTEES

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 2401. Uncertain beneficiaries; Probate Division of the Superior Court may appoint agent or attorney.

When a devise, legacy, gift, or trust is made to or for the benefit of a class or classes of beneficiaries in this State whose members are not all ascertained or definitely ascertainable, the Probate Division of the Superior Court may in its discretion appoint a person or persons as agent or attorney to represent the beneficiaries, who shall act for them and their interests, without expense to the State, in any litigation, contest, or compromise in relation to the devise, legacy, gift, trust, will, contract, or instrument by which the same is given.

Amended 2017, No. 195 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 3133. 1947, No. 202 , § 3156. P.L. § 3048. G.L. § 3496. P.S. § 3014. 1900, No. 134 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Generally.

This section may be resorted to when a trust is made to or for the benefit of a class or classes of beneficiaries in this state whose members are not all ascertained or definitely ascertainable. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

2. Agent's power.

Under this section an appointed agent's powers extend only to any litigation, contest, or compromise in the ascertainment of uncertain beneficiaries under the trust. Destitute of Bennington County v. Henry W. Putnam Memorial Hospital, 125 Vt. 289, 215 A.2d 134 (1965).

§ 2402. Probate Division of the Superior Court may appoint trustees; duties.

  1. When, under the provisions of a will probated in another state or country, or of a decree of a court of another state or country, a devise, legacy, gift, or trust belongs to or for the benefit of a class or classes of beneficiaries in this State, whose members are not all ascertained or definitely ascertainable, or is appropriated or devoted to any purpose or benefit in which the public or a class of the public in this State is interested, the Probate Division of the Superior Court may appoint one or more trustees to take charge of the payment and distribution of the devise, legacy, gift, or trust under the will or decree.
  2. The trustee or trustees shall give bonds and render accounts annually of all transactions to the Probate Division of the Superior Court and shall be subject to the same liabilities, and the court shall have the same power as in case of other trustees appointed by the Probate Division of the Superior Court.

    Amended 1985, No. 144 (Adj. Sess.), § 114; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 3134. 1947, No. 202 , § 3157. P.L. § 3049. G.L. § 3497. P.S. § 3015. 1902, No. 51 , § 1.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in the section heading and three times throughout the section.

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "for the district in which the legacy or gift is to be paid or distributed or in which the beneficiary or beneficiaries reside or are located" preceding "may appoint" and made other minor stylistic changes.

Subsec. (b): Substituted "the" for "such" preceding "probate".

Cross References

Cross references. Ancillary administration generally, see Rule 80.2, Vermont Rules of Probate Procedure.

Foreign fiduciaries and sureties, see Rule 68, Vermont Rules of Probate Procedure.

Probate bonds generally, see § 2101 et seq. of this title.

§ 2403. Trustees, when appointed.

A trustee may be appointed by the Probate Division of the Superior Court upon petition of any person, class, or beneficiary coming within the provision of the will or decree, or upon petition of a corporation representing beneficiaries under the will or decree.

Amended 1985, No. 144 (Adj. Sess.), § 115; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 16.

History

Source. V.S. 1947, § 3135. 1947, No. 202 , § 3158. P.L. § 3051. G.L. § 3499. P.S. § 3017. 1902, No. 51 , § 3.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "petition" for "application" in two places and "a" for "such" preceding "trustee" and deleted "or trustees" thereafter and made other minor stylistic changes.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

§ 2404. Repealed. 2017, No. 195 (Adj. Sess.), § 16.

History

Former § 2404. Former § 2404, relating to duties of executor or trustee under will or decree, was derived from V.S. 1947, § 3136; 1947, No. 202 , § 3159; P.L. § 3050; G.L. § 3498; P.S. § 3016; 1902, No. 51 , § 2.

CHAPTER 109. PHILANTHROPIC TRUSTS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which repealed this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§§ 2501-2503. Repealed. 2017, No. 195 (Adj. Sess.), § 17.

History

Former § 2501-2503. Former § 2501, relating to charitable, cemetery, and philanthropic trusts; annual reports, was derived from V.S. 1947, § 3147; 1937, No. 52 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 116; 2009, No. 20 , § 26; 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2502, relating to penalties, was derived from V.S. 1947, § 3148; 1937, No. 52 , § 2 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2503, relating to exemption, was derived from V.S. 1947, § 3149. 1937, No. 52 , § 3.

CHAPTER 111. GUARDIANSHIP

SUBCHAPTER 1. JURISDICTION OF PROBATE DIVISION OF THE SUPERIOR COURT

SUBCHAPTER 2. PERSONS FOR WHOM GUARDIANS APPOINTED

Article 1. Guardians of Minors.

Article 1A. Financial Guardians of Minors.

Article 1B. Permanent Guardianship for Minors.

Article 2. Infirm Persons.

Article 3. Spendthrifts.

Article 4. Nonresidents.

SUBCHAPTER 3. BONDS

SUBCHAPTER 4. INVENTORY AND DISPOSITION OF ESTATE

SUBCHAPTER 5. PAYMENT OF DEBTS OF WARD

SUBCHAPTER 6. SALE OF REAL ESTATE

SUBCHAPTER 7. SETTLEMENT OF ACCOUNTS

SUBCHAPTER 8. VOID OR VOIDABLE APPOINTMENT

SUBCHAPTER 9. TERMINATION OF GUARDIANSHIP

SUBCHAPTER 10. APPEALS

SUBCHAPTER 11. POWERS OF ATTORNEY

SUBCHAPTER 12. PERSONS IN NEED OF GUARDIANSHIP

SUBCHAPTER 13. PUBLIC GUARDIAN

SUBCHAPTER 14. SPECIAL IMMIGRATION STATUS

Cross References

Cross references. Uniform Veteran's Guardianship Act, see § 3101 et seq. of this title.

History

Amendments--2007 (Adj. Sess.). Rewrote the chapter heading.

ANNOTATIONS

Cited. In re Fletcher, 145 Vt. 209, 486 A.2d 627 (1984).

Law review commentaries

Law review. Estate Planning for the Family with a Disabled Child, see 14 Vt. L. Rev. 529 (1990).

Subchapter 1. Jurisdiction of Probate Division of the Superior Court

§ 2601. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 2601, relating to venue, was derived from V.S. 1947, § 3290; P.L. § 3199; G.L. § 3633; P.S. § 3141; V.S. § 2734; R.L. § 2419; G.S. 48, §§ 21, 22; R.S. 44, §§ 19, 20; R. 1787, p. 59. The subject matter is now covered by § 311a of Title. 4.

§ 2602. Court appointing, to have jurisdiction; accounts.

The Probate Division of the Superior Court by which a guardian is appointed shall have jurisdiction of the estate of the ward and shall alone be authorized to license the sale of the estate and settle the guardian's account. In accordance with the Rules of Probate Procedure, a guardian shall annually account to the court for the proceeds and expenditures of the ward's estate, together with an account of the guardian's fees.

Amended 1985, No. 144 (Adj. Sess.), § 117; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3291. P.L. § 3200. G.L. § 3634. P.S. § 3142. V.S. § 2735. 1888, No. 85 . R.L. § 2420. G.S. 48, § 23. R.S. 44, § 21.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Made minor stylistic changes in the first sentence and rewrote the second sentence.

Cross References

Cross references. Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

ANNOTATIONS

1. Jurisdiction of court appointing guardian.

The word "alone" in this section was used to confine the discharge of duties therein named to that one of probate courts appointing guardian, and to exclude interference of other probate courts. Harris v. Harris, 44 Vt. 320 (1872).

Cited. In re Willey, 189 Vt. 536, 14 A.3d 954 (mem.) (2010).

§ 2603. Nonresident guardian.

Except as otherwise provided in this chapter, the Probate Division of the Superior Court shall not appoint a guardian who is not domiciled in this State at the time of appointment, except where the guardian is named in a will or is a relative of the ward and in that case the same shall be discretionary with the court. The Probate Division of the Superior Court may remove a guardian who ceases to be domiciled in this State.

Amended 1967, No. 249 (Adj. Sess.), § 1, eff. Feb. 20, 1968; 1985, No. 144 (Adj. Sess.), § 118; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3294. P.L. § 3203. G.L. § 3637. 1908, No. 71 , § 2.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1967 (Adj. Sess.). Designated existing provisions of the section as subsec. (a) and inserted "or is a relative of the ward" following "will" in the first sentence and substituted "may" for "shall" following "appointment" in the second sentence of that subsection and added subsec. (b).

Cross References

Cross references. Foreign fiduciaries and sureties generally, see Rule 68, Vermont Rules of Probate Procedure.

Supervision of fiduciaries generally, see Rule 67, Vermont Rules of Probate Procedure.

Law review commentaries

Law review. The Appointment of Guardians by Will: A Comparison of Vermont's Statutory Provisions with the Provisions of the Uniform Probate Code, see 4 Vt. L. Rev. 275 (1979).

Subchapter 2. Persons for Whom Guardians Appointed

History

Law review commentaries

Law review. Guardianship for the adult: A Need for Due Process Protections in Vermont, see 4 Vt. L. Rev. 95 (1979).

ARTICLE 1. Guardians of Minors

§ 2621. Policy; purposes.

This article shall be construed in accordance with the following purposes and policies:

  1. It is presumed that the interests of minor children are best promoted in the child's own home. However, when parents are temporarily unable to care for their children, guardianship provides a process through which parents can arrange for family members or other parties to care for the children.
  2. Family members can make better decisions about minor children when they understand the consequences of those decisions and are informed about the law and the available supports.
  3. Decisions about raising a child made by a person other than the child's parent should be based on the informed consent of the parties unless there has been a finding of parental unsuitability.
  4. When the informed consent of the parents cannot be obtained, parents have a fundamental liberty interest in raising their children unless a proposed guardian can show parental unsuitability by clear and convincing evidence.
  5. Research demonstrates that timely reunification between parents and their children is more likely when children have safe and substantial contact with their parents.
  6. It is in the interests of all parties, including the children, that parents and proposed guardians have a shared understanding about the length of time that they expect the guardianship to last, the circumstances under which the parents will resume care for their children, and the nature of the supports and services that are available to assist them.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2622. Definitions.

As used in this article:

  1. "Child" means an individual who is under 18 years of age and who is the subject of a petition for guardianship filed pursuant to section 2623 of this title.
  2. "Child in need of guardianship" means:
    1. A child who the parties consent is in need of adult care because of any one of the following:
      1. The child's custodial parent has a serious or terminal illness.
      2. A custodial parent's physical or mental health prevents the parent from providing proper care and supervision for the child.
      3. The child's home is no longer habitable as the result of a natural disaster.
      4. A custodial parent of the child is incarcerated.
      5. A custodial parent of the child is on active military duty.
      6. The parties have articulated and agreed to another reason that guardianship is in the best interests of the child.
    2. A child who is:
      1. abandoned or abused by the child's parent;
      2. without proper parental care, subsistence, education, medical, or other care necessary for the child's well-being; or
      3. without or beyond the control of the child's parent.
  3. "Custodial parent" means a parent who, at the time of the commencement of the guardianship proceeding, has the right and responsibility to provide the routine daily care and control of the child. The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child. If physical parental rights and responsibilities are shared pursuant to court order, both parents shall be considered "custodial parents" for purposes of this subdivision.
  4. "Nonconsensual guardianship" means a guardianship with respect to which:
    1. a parent is opposed to establishing the guardianship; or
    2. a parent seeks to terminate a guardianship that the parent previously agreed to establish.
  5. "Noncustodial parent" means a parent who is not a custodial parent at the time of the commencement of the guardianship proceeding.
  6. "Parent" means a child's biological or adoptive parent, including custodial parents; noncustodial parents; parents with legal or physical responsibilities, or both; and parents whose rights have never been adjudicated.
  7. "Parent-child contact" means the right of a parent to have visitation with the child by court order.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2623. Petition for guardianship of minor; service.

  1. A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall state:
    1. the names and addresses of the parents, the child, and the proposed guardian;
    2. the proposed guardian's relationship to the child;
    3. the names of all members of the proposed guardian's household and each person's relationship to the proposed guardian and the child;
    4. that the child is alleged to be a child in need of guardianship;
    5. specific reasons with supporting facts why guardianship is sought;
    6. whether the parties agree that the child is in need of guardianship and that the proposed guardian should be appointed as guardian;
    7. the child's current school and grade level;
    8. if the proposed guardian intends to change the child's current school, the name and location of the proposed new school and the estimated date when the child would enroll;
    9. the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period; and
    10. any prior or current court proceedings, child support matters, or parent-child contact orders involving the child.
    1. A petition for guardianship of a child under this section shall be served on all parties and interested persons as provided by Rule 4 of the Vermont Rules of Probate Procedure. (b) (1)  A petition for guardianship of a child under this section shall be served on all parties and interested persons as provided by Rule 4 of the Vermont Rules of Probate Procedure.
      1. The Probate Division may waive the notice requirements of subdivision (1) of this subsection (b) with respect to a parent if the court finds that: (2) (A) The Probate Division may waive the notice requirements of subdivision (1) of this subsection (b) with respect to a parent if the court finds that:
        1. the identity of the parent is unknown; or
        2. the location of the parent is unknown and cannot be determined with reasonable effort.
      2. After a guardianship for a child is created, the Probate Division shall reopen the proceeding at the request of a parent of the child who did not receive notice of the proceeding as required by this subsection.

        Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2624. Jurisdiction; transfer to Family Division.

  1. Except as provided in subsection (b) of this section, the Probate Division shall have exclusive jurisdiction over proceedings under this article involving guardianship of minors.
      1. A custodial minor guardianship proceeding brought in the Probate Division under this article shall be transferred to the Family Division if there is an open proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division. (b) (1) (A)  A custodial minor guardianship proceeding brought in the Probate Division under this article shall be transferred to the Family Division if there is an open proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division.
      2. A minor guardianship proceeding brought in the Probate Division under this article may be transferred to the Family Division on motion of a party or on the court's own motion if any of the parties to the probate proceeding was a party to a closed divorce proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division.
      1. When a minor guardianship proceeding is transferred from the Probate Division to the Family Division pursuant to subdivision (1) of this subsection (b), the Probate judge and a Superior judge assigned to the Family Division shall confer regarding jurisdiction over the proceeding. Except as provided in subdivision (B) of this subdivision (2), all communications concerning jurisdiction between the Probate judge and the Superior judge under this subsection shall be on the record. Whenever possible, a party shall be provided notice of the communication and an opportunity to be present when it occurs. A party who is unable to be present for the communication shall be provided access to the record. (2) (A) When a minor guardianship proceeding is transferred from the Probate Division to the Family Division pursuant to subdivision (1) of this subsection (b), the Probate judge and a Superior judge assigned to the Family Division shall confer regarding jurisdiction over the proceeding. Except as provided in subdivision (B) of this subdivision (2), all communications concerning jurisdiction between the Probate judge and the Superior judge under this subsection shall be on the record. Whenever possible, a party shall be provided notice of the communication and an opportunity to be present when it occurs. A party who is unable to be present for the communication shall be provided access to the record.
      2. It shall not be necessary to inform the parties about or make a record of a communication between the Probate judge and the Superior judge under this subsection (b) if the communication involves scheduling, calendars, court records, or other similar administrative matters.
      3. After the Superior judge and Probate judge confer under subdivision (2)(A) of this subsection (b), the Superior judge may:
        1. consolidate the minor guardianship case with the pending matter in the Family Division and determine whether a guardianship should be established under this article; or
        2. transfer the guardianship petition back to the Probate Division for further proceedings after the pending matter in the Family Division has been adjudicated.
      4. If a guardianship is established by the Family Division pursuant to subdivision (2)(C)(i) of this subsection, the guardianship case shall be transferred back to the Probate Division for ongoing monitoring pursuant to section 2631 of this title.

        Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

ANNOTATIONS

1. Proceedings.

Trial court did not err in its treatment of voluntary guardianship petitions filed during the pendency of the juvenile proceedings and transferred to it, as it provided a reasoned basis for its decision to consider the termination of parental rights (TPR) petitions before the guardianship petitions in that it explained that after the filing of the TPRs it made little sense for the guardianship petitioners to continue to attend hearings at which they had no role, and also expressed concern about petitioners' continued presence at the hearings when they would be testifying as witnesses in the upcoming TPR. Furthermore, the children's parents lacked standing to make claims on behalf of the guardianship petitioners. In re A.M. & G.M., - Vt. - , - A.3d - (Oct. 16, 2020).

When a guardianship proceeding by the child's paternal grandmother was transferred from the probate division to the family division due to a pending custody proceeding, the family division properly transferred the guardianship matter back to the probate division to proceed after the termination of parental rights petition was resolved, as this option was statutorily available. Furthermore, the record demonstrated that the family division understood there was discretion under the statute regarding the choices for proceeding and exercised that discretion appropriately. In re C.B., - Vt. - , - A.3d - (Sept. 25, 2020).

In dismissing appellants' petition for appointment of a guardian on the ground that the Family Division had exclusive jurisdiction over the child, the Probate Division failed to comply with the statute regarding transfer of a guardianship proceeding to the Family Division, including the requirement that the Probate judge confer with the Superior judge assigned to the Family Division regarding jurisdiction over the proceeding. In re Guardianship of N.P., 204 Vt. 272, 166 A.3d 593 (2017).

§ 2625. Hearing; counsel; guardian ad litem.

  1. The Probate Division shall schedule a hearing upon the filing of the petition and shall provide notice of the hearing to all parties and interested persons who were provided notice under subdivision 2623(c)(1) of this title.
  2. The child shall attend the hearing if he or she is 14 years of age or older unless the child's presence is excused by the court for good cause. The child may attend the hearing if he or she is less than 14 years of age.
  3. The court shall appoint counsel for the child if the child will be called as a witness. In all other cases, the court may appoint counsel for the child.
    1. The child may be called as a witness only if the court finds after hearing that: (d) (1)  The child may be called as a witness only if the court finds after hearing that:
      1. the child's testimony is necessary to assist the court in determining the issue before it;
      2. the probative value of the child's testimony outweighs the potential detriment to the child; and
      3. the evidence sought is not reasonably available by any other means.
    2. The examination of a child called as a witness may be conducted by the court in chambers in the presence of such other persons as the court may specify and shall be recorded.
  5. The court may appoint a guardian ad litem for the child on motion of a party or on the court's own motion.
    1. The court may grant an emergency guardianship petition filed ex parte by the proposed guardian if the court finds that: (f) (1)  The court may grant an emergency guardianship petition filed ex parte by the proposed guardian if the court finds that:
      1. both parents are deceased or medically incapacitated; and
      2. the best interests of the child require that a guardian be appointed without delay and before a hearing is held.
    2. If the court grants an emergency guardianship petition pursuant to subdivision (1) of this subsection (f), it shall schedule a hearing on the petition as soon as practicable and in no event more than three business days after the petition is filed.

      Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2017, No. 11 , § 33.

History

Amendments--2017. Subdiv. (f)(2): Substituted "three business days" for "72 hours".

§ 2626. Consensual guardianship.

  1. If the petition requests a consensual guardianship, the petition shall include a consent signed by the custodial parent or parents verifying that the parent or parents understand the nature of the guardianship and knowingly and voluntarily consent to the guardianship. The consent required by this subsection shall be on a form approved by the Court Administrator.
  2. On or before the date of the hearing, the parties shall file an agreement between the proposed guardian and the parents. The agreement shall address:
    1. the responsibilities of the guardian;
    2. the responsibilities of the parents;
    3. the expected duration of the guardianship, if known; and
    4. parent-child contact and parental involvement in decision making.
  3. Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in probate proceedings) shall apply to hearings under this section.
  4. The court shall grant the petition if it finds after the hearing by clear and convincing evidence that:
    1. the child is a child in need of guardianship as defined in subdivision 2622(2)(A) of this title;
    2. the child's parents had notice of the proceeding and knowingly and voluntarily consented to the guardianship;
    3. the agreement is voluntary;
    4. the proposed guardian is suitable; and
    5. the guardianship is in the best interests of the child.
  5. If the court grants the petition, it shall approve the agreement at the hearing and issue an order establishing a guardianship under section 2628 of this title. The order shall be consistent with the terms of the parties' agreement unless the court finds that the agreement was not reached voluntarily or is not in the best interests of the child.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2627. Nonconsensual guardianship.

  1. If the petition requests a nonconsensual guardianship, the burden shall be on the proposed guardian to establish by clear and convincing evidence that the child is a child in need of guardianship as defined in subdivision 2622(2)(B) of this title.
  2. The Vermont Rules of Evidence shall apply to a hearing under this section.
  3. The court shall grant the petition if it finds after the hearing by clear and convincing evidence that the proposed guardian is suitable and that the child is a child in need of guardianship as defined in subdivision 2622(2)(B) of this title.
  4. If the court grants the petition, it shall issue an order establishing a guardianship under section 2628 of this title.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2628. Guardianship order.

  1. If the court grants a petition for guardianship of a child under subsection 2626(d) or 2627(d) of this title, the court shall enter an order establishing a guardianship and naming the proposed guardian as the child's guardian.
  2. A guardianship order issued under this section shall include provisions addressing the following matters:
    1. the powers and duties of the guardian consistent with section 2629 of this title;
    2. the expected duration of the guardianship, if known;
    3. a family plan on a form approved by the Court Administrator that:
      1. in a consensual case is consistent with the parties' agreement; or
      2. in a nonconsensual case includes, at a minimum, provisions that address parent-child contact consistent with section 2630 of this title; and
    4. the process for reviewing the order consistent with section 2631 of this title.

      Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2629. Powers and duties of guardian.

  1. The court shall specify the powers and duties of the guardian in the guardianship order.
  2. The duties of a custodial guardian shall include the duty to:
    1. take custody of the child and establish his or her place of residence, provided that a guardian shall not change the residence of the child to a location outside the State of Vermont without prior authorization by the court following notice to the parties and an opportunity for hearing;
    2. make decisions related to the child's education;
    3. make decisions related to the child's physical and mental health, including consent to medical treatment and medication;
    4. make decisions concerning the child's contact with others, provided that the guardian shall comply with all provisions of the guardianship order regarding parent-child contact and contact with siblings;
    5. receive funds paid for the support of the child, including child support and government benefits; and
    6. file an annual status report to the Probate Division, with a copy to each parent at his or her last known address, including the following information:
      1. the current address of the child and each parent;
      2. the child's health care and health needs, including any medical and mental health services the child received;
      3. the child's educational needs and progress, including the name of the child's school, day care, or other early education program, the child's grade level, and the child's educational achievements;
      4. contact between the child and his or her parents, including the frequency and duration of the contact and whether it was supervised;
      5. how the parents have been involved in decision making for the child;
      6. how the guardian has carried out his or her responsibilities and duties, including efforts made to include the child's parents in the child's life;
      7. the child's strengths, challenges, and any other areas of concern; and
      8. recommendations with supporting reasons as to whether the guardianship order should be continued, modified, or terminated.

        Added 2013, No. 170 (Adj. Sess.), § 1.

§ 2630. Parent-child contact.

  1. The court shall order parent-child contact unless it finds that denial of parent-child contact is necessary to protect the physical safety or emotional well-being of the child. Except for good cause shown, the order shall be consistent with any existing parent-child contact order. The order should permit the child to have contact of reasonable duration and frequency with the child's siblings, if appropriate.
  2. The court may determine the reasonable frequency and duration of parent-child contact and may set conditions for parent-child contact that are in the child's best interests.
  3. The court may modify the parent-child contact order upon motion of a party or upon the court's own motion, or if the parties stipulate to the modification.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2631. Reports; review hearing.

  1. The guardian shall file an annual status report to the Probate Division pursuant to subdivisions 2629(b)(4) and 2629(c)(5) of this title, and shall provide copies of the report to each parent at his or her last known address. The court may order that a status report be filed more frequently than once per year.
  2. The Probate Division may set a hearing to review a report required by subsection (a) of this section or to determine progress with the family plan required by subdivision 2628(b)(3) of this title. The court shall provide notice of the hearing to all parties and interested persons.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2632. Termination.

  1. A parent may file a motion to terminate a guardianship at any time. The motion shall be filed with the Probate Division that issued the guardianship order and served on all parties and interested persons.
    1. If the motion to terminate is made with respect to a consensual guardianship established under section 2626 of this title, the court shall grant the motion and terminate the guardianship unless the guardian files a motion to continue the guardianship within 30 days after the motion to terminate is served. (b) (1)  If the motion to terminate is made with respect to a consensual guardianship established under section 2626 of this title, the court shall grant the motion and terminate the guardianship unless the guardian files a motion to continue the guardianship within 30 days after the motion to terminate is served.
    2. If the guardian files a motion to continue the guardianship, the matter shall be set for hearing and treated as a nonconsensual guardianship proceeding under section 2627 of this title. The parent shall not be required to show a change in circumstances, and the court shall not grant the motion to continue the guardianship unless the guardian establishes by clear and convincing evidence that the minor is a child in need of guardianship under subdivision 2622(2)(B) of this title.
    3. If the court grants the motion to continue, it shall issue an order establishing a guardianship under section 2628 of this title.
    1. If the motion to terminate the guardianship is made with respect to a nonconsensual guardianship established under section 2627 or subdivision 2632(b)(3) of this title, the court shall dismiss the motion unless the parent establishes that a change in circumstances has occurred since the previous guardianship order was issued. (c) (1)  If the motion to terminate the guardianship is made with respect to a nonconsensual guardianship established under section 2627 or subdivision 2632(b)(3) of this title, the court shall dismiss the motion unless the parent establishes that a change in circumstances has occurred since the previous guardianship order was issued.
    2. If the court finds that a change in circumstances has occurred since the previous guardianship order was issued, the court shall grant the motion to terminate the guardianship unless the guardian establishes by clear and convincing evidence that the minor is a child in need of guardianship under subdivision 2622(2)(B) of this title.

      Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2633. Appeals.

Notwithstanding 12 V.S.A. § 2551 or 2553, the Vermont Supreme Court shall have appellate jurisdiction over orders of the Probate Division issued under this article.

Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2634. Department for Children and Families policy.

The Department for Children and Families shall adopt a policy defining its role with respect to families who establish a guardianship under this article. The policy shall be consistent with the following principles:

  1. The Family Services Division shall maintain a policy ensuring that when a child must be removed from his or her home to ensure the child's safety, the Division will pursue a CHINS procedure promptly if there are sufficient grounds under 33 V.S.A. § 5102 .
  2. When the Family Services Division is conducting an investigation or assessment related to child safety and the child may be a child in need of care and supervision as defined in 33 V.S.A. § 5102(3) , the Division shall not make any recommendation regarding whether a family should pursue a minor guardianship. The staff may provide referrals to community-based resources for information regarding minor guardianships.
  3. In response to a request from the Probate judge, the Family Services Division social worker shall attend a minor guardianship hearing and provide information relevant to the proceeding.
  4. If a minor guardianship is established during the time that the Family Services Division has an open case involving the minor, the social worker shall inform the guardian and the parents about services and supports available to them in the community and shall close the case within a reasonable time unless a specific safety risk is identified.

    Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.

§ 2635. -2640. [Reserved for future use.].

If competent, the father and mother of a legitimate minor child shall be joint guardians of such child. If competent, the surviving parent shall be the sole guardian.

History

Source. V.S. 1947, § 3292. P.L. § 3201. 1921, No. 84 . G.L. § 3635. P.S. § 3144. V.S. § 2737. R.L. § 2422. G.S. 72, § 2. R.S. 65, § 2.

ANNOTATIONS

Analysis

1. Parents as guardians.

Under this section, the parents of the child are the guardians of their child. In re S. A. M., 140 Vt. 194, 436 A.2d 736 (1981).

A minor, sued jointly with his father who was present with him throughout the trial, assisting, advising and defending, could not claim that he did not have his day in court because no guardian ad litem was appointed to look after his defense. Adams v. Cook, 91 Vt. 281, 100 A. 42 (1917).

2. Adopted children.

Foster father and mother were joint guardians of an adopted child within meaning and intent of this section. 1934-36 Op. Atty. Gen. 450.

Cited. In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988).

§ 2642. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former § 2642, relating to release on behalf of a minor, was derived from 1953, No. 85 . The subject matter is now covered by § 2643 of this title.

§ 2643. Release by court and parent on behalf of minor.

  1. The Superior judge of the Superior Court within and for the county where the minor resides, on behalf of a minor, must approve of and consent to a release to be executed by a parent in the settlement of any claim that does not exceed the sum of $10,000.00. A release so furnished shall be binding on the minor and both parents, their heirs, executors, administrators, or assigns, respectively.
  2. Any claim settled for a sum in excess of $10,000.00 shall require the approval of a court-appointed guardian.

    Added 1959, No. 262 , § 38, eff. June 11, 1959; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1979, No. 77 , § 1, eff. May 10, 1979; 2019, No. 167 (Adj. Sess.), § 17, eff. October 7, 2020.

History

Amendments--2019 (Adj. Sess.). Subsecs. (a) and (b): Substituted "$10,000.00" for "$1,500.00".

Amendments--1979. Designated existing provisions of the section as subsec. (a) and substituted "$1,500.00" for "$500.00" at the end of the first sentence of that subsection and added subsec. (b).

Amendments--1973 (Adj. Sess.). Substituted "superior court" for "county court" in the first sentence.

Prior law. 14 V.S.A. § 2642a.

Cross References

Cross references. Disavowal of agreement releasing claim for personal injury or death, see § 1076 of Title 12.

ANNOTATIONS

Analysis

1. Purpose.

This section was intended by the legislature to permit the settlement of small claims belonging to minor children without the formality and expense attendant upon the appointment of a guardian for the child. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Even in the case of relatively small claims, the legislature intended not to totally remove the protections traditionally afforded by the guardianship procedure in enacting this section. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

1.5. Construction.

There is nothing in the statute governing releases on behalf of a minor, as construed in Whitcomb, that provides authority for a superior court to supervise the use and investment of a minor's settlement proceeds once the settlement is approved. Thus, the statute did not authorize a superior court to control how the proceeds from a wrongful death suit were used or invested after distribution. In re Willey, 189 Vt. 536, 14 A.3d 954 (mem.) (2010).

2. Construction with other law.

Where parties to wrongful death action reached a settlement which provided benefits for deceased's minor child, court did not have authority under this section, to reject the settlement and compel the parties to go to trial, since the wrongful death claim belonged to deceased's estate and there was no cause of action of a minor subject to release, a prerequisite for operation of this section. Estate of Tilton v. Lamoille Superior Court, 148 Vt. 213, 531 A.2d 919 (1987).

This section establishes the authority of a parent to release the claims of a minor, and that authority is not contained in section 2657 of this title, governing appointment of a guardian ad litem for a minor. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

3. Duty of court.

This section imposes an affirmative obligation on a superior court judge to protect the best interests of the minor through an independent inquiry to determine whether the proposed settlement and parental release does in fact satisfy this standard. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

4. Amount of claim.

This section requires approval of a settlement by the superior court judge in cases involving settlements in excess of $500 as well as in cases involving settlements of $500 or less as there is no legitimate rationale for protecting minor children in settlement agreements of $500 or less, yet denying protection merely because the settlement is in excess of $500, since in both situations the minor child is in need of protection from the potential improvidence of his or her parents. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Purpose of legislature in enacting this section was to modify the common law only with respect to settlements of $500 or less, and where proposed settlement agreement exceeded $500 it was necessary for the minor to be represented by a court-appointed guardian. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Language of this section prior to 1979 amendment would not be construed as not requiring judicial involvement in cases where a parent settled a minor child's claim for more than $500, since even a guardian ad litem cannot, at common law, settle the claim of a minor without judicial supervision, and a parent, acting as next friend or parent of a minor child, would have no greater authority to settle the claims of the child than would a guardian ad litem, and, therefore, such a construction would effectuate a substantial change in the common law. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Trial court erred in granting summary judgment for defendant in negligence case based on accord and satisfaction of minor's cause of action as result of settlement agreement entered into between the parent of the minor child and the defendant, since the settlement was invalid under this section, the effect of which was only to modify the common law prohibition of a parent compromising a minor child's cause of action absent statutory authority with respect to settlements of $500 or less, and under which, where the proposed settlement exceeded $500, it was necessary for the minor to be represented by a court-appointed guardian. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Allocation of a specific settlement sum to a minor child where defendants seek to contract with parents in settlement of litigation involving a minor child in which the suit is brought by the parents on behalf of the minor plaintiff and in which the parents also join as party plaintiff is necessary because it enables the superior court judge to properly perform the supervisory role required by subsection (a) of this section, authorizing settlement of claims on behalf of minor child by superior court and parent in all cases where the proposed settlement is $1,500 or less, and is also necessary so that the parties and the court will know when the appointment of a guardian for a minor child is mandated by subsection (b) of this section. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Cited. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

§ 2644. Child of unmarried woman.

An unmarried woman who bears a child shall be guardian of such child until another is appointed.

Amended 1987, No. 174 (Adj. Sess.), § 3.

History

Source. V.S. 1947, § 3293. P.L. § 3202. G.L. § 3636. P.S. § 3145. V.S. § 2738. R.L. § 2423. G.S. 72, § 3. R.S. 65, § 3.

Amendments--1987 (Adj. Sess.). Rewrote the section heading and substituted "an unmarried woman who bears a" for "the mother of a bastard minor" preceding "child shall be" in the text of the section.

Prior law. 14 V.S.A. § 2643.

ANNOTATIONS

Analysis

1. Generally.

In the case of an illegitimate child, the mother is the guardian until another is appointed, and this status continues until altered on the basis of legal proceedings. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

2. Father of child.

If the father of a child born out of wedlock demonstrates the requisite custodial, personal or financial relationship with the child, he acquires the status of joint guardian with the mother, this section notwithstanding, and a third party guardian may not be appointed for the child under section 2645 of this title without proof of the requisite grounds listed in section 2645. In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988).

§ 2645. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.

History

Former § 2645. Former § 2645, relating to appointment of guardian, was derived from V.S. 1947, § 3295; P.L. § 3204; 1927, No. 49 , § 1. G.L. § 3638; P.S. § 3146; V.S. § 2739; R.L. § 2424; 1878, No. 58 ; G.S. 72, §§ 4, 17; 1861, No. 28 . R.S. 65, §§ 4, 13; 1821, pp. 69, 70; R. 1797, p. 379, § 4 and amended by 1981, No. 153 (Adj. Sess.), § 1; 1985, No. 144 (Adj. Sess.), § 119 and 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2645

1. Constitutionality.

Subdivision (2) of this section, providing for appointment of a guardian for a minor when parent is shown to be unsuitable to have the minor's custody, is not so vague, in using the "suitability" standard, as to violate due process, in view of the saving interpretation given to suitability by supreme court. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303 (1980).

Although subdivision (3) of this section, authorizing appointment of guardian for minors under certain circumstances, did not specifically provide for notice to parents of minor, it did not follow that it was wanting in due process of law, for, there being no express requirement to contrary, statute will not be interpreted to authorize judicial proceedings without notice to parties to be affected thereby. Bioni v. Haselton, 99 Vt. 453, 134 A. 606 (1926).

2. Notice and hearing.

Appointment of guardian of minor domiciled in state, under subdivision (3) of this section without notice of proceedings to minor's parents who resided out of state, was void. Bioni v. Haselton, 99 Vt. 453, 134 A. 606 (1926).

When a minor has no parent living who is authorized to act as his guardian, on application of such minor or of any relative or friend, probate court may appoint some suitable person, and under this provision of statute, whenever appointment of a guardian is made by probate court, notice is not required to be given to anyone. Farrar v. Olmstead, 24 Vt. 123 (1852).

3. Incompetent parent.

Subdivision (2) of this section does not impose a requirement that the probate court appoint a guardian ad litem for an incompetent parent in a proceeding for appointment of a guardian for the minor child of such parent. Guardianship of H.L., 143 Vt. 62, 460 A.2d 478 (1983).

4. Child born out of wedlock.

There is no per se statutory preference in favor of the natural father of a child born out of wedlock, and this section does not impose on third parties seeking custody of a child born out of wedlock the initial burden of proving the father to be incompetent or unsuitable. In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988).

If the father of a child born out of wedlock demonstrates the requisite custodial, personal or financial relationship with the child, he acquires the status of joint guardian with the mother, section 2644 of this title notwithstanding, and a third party guardian may not be appointed for the child under this section without proof of the requisite grounds listed in this section. In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988).

5. Nonresident.

Probate court had authority under section 2711 of this title to appoint a guardian for a nonresident minor who was injured in an automobile accident in this state, since, if she were a resident, she would qualify under subsection (5) for the appointment of a guardian over her property, which consisted of the pending lawsuit. Matson by Kehoe v. Anctil, 979 F. Supp. 1031 (D. Vt. 1997).

6. Termination.

Although there is no specific statute on termination of a guardianship created under subdivision (4) of this section, having provided for a hearing on the merits of revocation when the parent has been found "incompetent or unsuitable" under subdivision (2), it is reasonable to assume that the Legislature intended a similar hearing when custody was transferred in the "best interest of the minor" under subdivision (4); in either case, revocation would be contingent upon a finding, after hearing, that the circumstances which precipitated the transfer of custody no longer pertained. Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002).

Because the right to care for one's children is a fundamental liberty interest, recognized and protected by the Vermont Supreme Court and the United States Supreme Court, a parent who seeks to revoke guardianship created under subdivision (4) of this section enjoys a presumption that his or her custody is in the child's best interest; however, nothing in the constitutional or statutory scheme, the common law, or general practice supports the proposition that the guardianship is terminable at the will of the parent. Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002).

Where current guardians and the minor's court-appointed attorney oppose revocation of guardianship created under subdivision (4) of this section, the court must be free to order an evidentiary hearing to determine whether granting the petition is in the best interests of the child. Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002).

§ 2646. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 2646, relating to notice to parents of application for appointment of guardian, was derived from V.S. 1947, § 3296; P.L. § 3205; 1927, No. 49 , § 1; G.L. § 3638; P.S. § 3146; V.S. § 2739; R.L. § 2424; 1878, No. 58 ; G.S. 72, §§ 4, 17; 1861, No. 28 ; R.S. 65, §§ 4, 13; 1821, pp. 69, 70; R. 1797, p. 379, § 4, and amended by 1971, No. 185 (Adj. Sess.), § 178.

§ 2647. For minor interested in an estate.

When notice is required to be given to a minor interested in an estate, as heir, devisee, or legatee, or representative of either, a guardian of the minor shall be appointed before the notice is given. Before any part of the estate is assigned to a minor, a guardian shall be appointed, although the minor has a parent living who is authorized to act as guardian.

Amended 1985, No. 144 (Adj. Sess.), § 120.

History

Source. V.S. 1947, § 3297. P.L. § 3206. G.L. § 3639. P.S. § 3147. V.S. § 2740. R.L. § 2425. G.S. 72, § 4. R.S. 65, § 4.

Amendments--1985 (Adj. Sess.). Deleted "by law" following "when" and "in course of settlement" following "estate" in the first sentence and made other minor stylistic changes in the second sentence.

Prior law. 14 V.S.A. § 2646.

Cross References

Cross references. Appointment of guardians ad litem, see Rule 18(c), Vermont Rules of Probate Procedure.

Parental custody of minor, see § 2655 of this title.

§ 2648. Parent may be appointed guardian.

When a parent is authorized to act as guardian and the appointment of a guardian is required, such parent may be appointed if approved by the court.

History

Source. V.S. 1947, § 3298. P.L. § 3207. G.L. § 3640. P.S. § 3148. V.S. § 2741. R.L. § 2426. G.S. 72, § 4. R.S. 65, § 4.

Prior law. 14 V.S.A. § 2647.

Cross References

Cross references. Parental custody of minor, see § 2655 of this title.

§ 2649. Guardian appointed for nonresident minor.

On the petition of a minor, not a resident of this State, or a person interested in the welfare of the minor, the court may appoint a guardian of the minor when it appears that the minor owns or has an interest in real estate situated in the State.

Amended 1985, No. 144 (Adj. Sess.), § 121.

History

Source. V.S. 1947, § 3299. P.L. § 3208. G.L. § 3641. 1908, No. 77 . P.S. § 3149. V.S. § 2742. R.L. § 2427. G.S. 72, § 4. R.S. 65, § 4. 1821, p. 69. R. 1797, p. 257, § 93. R. 1787, p. 59.

Amendments--1985 (Adj. Sess.). Section amended generally.

Prior law. 14 V.S.A. § 2648.

Cross References

Cross references. Appointment of guardians of property of nonresidents, see § 2711 of this title.

Parental custody of minor, see § 2655 of this title.

Proceedings by parents for removal of guardian, see § 3003 of this title.

§ 2650. Minor's choice of guardian.

Minors residing in the State and having reached the age of 14 years may choose their guardians, subject to the approval of the Probate Division of the Superior Court, and may appear before the court or before a Superior judge and make their choice. The certificate of such magistrate shall be sufficient evidence to the court of the minor's choice.

Amended 1965, No. 194 , § 10, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 64, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), §§ 236, 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3300. P.L. § 3209. G.L. § 3642. 1908, No. 62 . P.S. § 3150. V.S. § 2743. R.L. § 2428. G.S. 72, § 4. R.S. 65, § 4. 1821, p. 69. R. 1797, p. 257, § 93. R. 1787, p. 59.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1973 (Adj. Sess.). Deleted "justice or a" preceding "district" in the first sentence.

Amendments--1965. Substituted "district" for "municipal" preceding "judge" in the first sentence.

Prior law. 14 V.S.A. § 2649.

§ 2651. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.

History

Former § 2651. Former § 2651, relating to when minor refuses to choose, was derived from V.S. 1947, § 3295; P.L. § 3204; 1927, No. 49 , § 1. G.L. § 3638; P.S. § 3146; V.S. § 2739; R.L. § 2424; 1878, No. 58 ; G.S. 72, §§ 4, 17; 1861, No. 28 . R.S. 65, §§ 4, 13; 1821, pp. 69, 70; R. 1797, p. 379, § 4 and amended by 1981, No. 153 (Adj. Sess.), § 1; 1985, No. 144 (Adj. Sess.), § 119 and 2009, No. 154 (Adj. Sess.), § 238a.

§ 2652. Choice of another guardian by minor.

A person appointed guardian of a minor shall continue to be such until another is appointed. After the minor arrives at the age of 14 years, he or she may, from time to time, choose and have appointed another guardian.

History

Source. V.S. 1947, § 3302. 1939, No. 57 , § 1. P.L. § 3211. G.L. § 3644. P.S. § 3152. V.S. § 2745. R.L. § 2430. G.S. 72, § 4. R.S. 65, § 4. 1821, p. 69.

Prior law. 14 V.S.A. § 2651.

§ 2653. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.

History

Former § 2653. Former § 2653, relating to extent of guardian's control, was derived from V.S. 1947, § 3303; P.L. § 3212; G.L. § 3645; P.S. § 3153; V.S. § 2746; R.L. § 2431; G.S. 72, §§ 5, 25, 48; R.S. 65, §§ 5, 26, 33; 1821, pp. 71, 72; R. 1797, p. 260, § 100 and amended by 1959, No. 262 , § 31, eff. June 11, 1959; 1979, No. 76 , § 1; 1983, No. 224 (Adj. Sess.) and 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2653

1. Sale of property.

Guardian of minor could sell personalty to maintain ward. Administrator of Pratt v. Baker, 56 Vt. 70 (1884).

2. Stepfather as guardian.

When stepfather was appointed guardian, relation that had existed between them was changed to that of guardian and ward; he had custody of ward, care of his estate, and was bound to support and educate him and he should be allowed for the support furnished. Administrator of Pratt v. Baker, 56 Vt. 70 (1884).

Cited. In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988); In re Willey, 189 Vt. 536, 14 A.3d 954 (mem.) (2010).

§ 2654. Control over property in another state.

A guardian appointed by a Probate Division of the Superior Court in this State shall have the same power and authority to take possession of, manage, sell and convey personal property and real estate of his or her ward, situate in another state or foreign country, as he or she has over like property situated in this State. Such guardian shall account to the Probate Division of the Superior Court of this State for all property of his or her ward in another state or foreign country, which comes into his or her hands and control.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3304. P.L. § 3213. G.L. § 3646. P.S. § 3154. 1902, No. 53 , § 1.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Prior law. 14 V.S.A. § 2653.

§ 2655. Parent may have custody of person.

Either parent may have the custody of the person and care of the education of the minor, if the court, at the time of appointing a guardian of the minor, deems the parent to be competent and suitable for that purpose. If the court deems a parent incompetent or unsuitable, it shall direct accordingly in the letters of guardianship. In its discretion, at any time during the continuance of the guardianship, the court may change the custody of a minor, upon notice and after hearing, if the court finds the person having custody incompetent or unsuitable.

Amended 1985, No. 144 (Adj. Sess.), § 122.

History

Source. V.S. 1947, § 3305. P.L. § 3214. G.L. § 3647. 1910, No. 102 . P.S. § 3155. V.S. § 2747. R.L. § 2432. G.S. 72, §§ 6, 7. R.S. 65, §§ 6, 7.

Amendments--1985 (Adj. Sess.). Substituted "either parent" for "the father of a minor or, if he is dead, the mother" preceding "may have" in the first sentence and "a" for "such" following "deems" in the second sentence and rewrote the third sentence.

Prior law. 14 V.S.A. § 2654.

Cross References

Cross references. Appointment of guardians for minors generally, see §§ 2645, 2647 and 2649 of this title.

§ 2656. Guardian appointed by will.

By a last will, either parent may appoint guardians for minor children, or for children, regardless of age, who are judicially determined to be in need of guardianship under the provisions of this chapter, whether living at the time of making the will or born afterwards, and such guardians shall be governed by the laws applicable to guardians appointed by the Probate Division of the Superior Court. If, by his or her will appointing a guardian, the testator orders or requests that a bond shall not be required, it may be dispensed with, unless the Probate Division of the Superior Court judges that from a change in the circumstances of the guardian or from other cause the estate of the ward will be insecure.

Amended 1975, No. 138 (Adj. Sess.), § 1, eff. Feb. 27, 1976; 1977, No. 92 ; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3306. P.L. § 3215. G.L. § 3648. P.S. § 3156. V.S. § 2748. R.L. § 2433. G.S. 72, §§ 8, 9. R.S. 65, §§ 60, 61.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1977. Inserted "or for children, regardless of age, who are judicially determined to be in need of guardianship under the provisions of this chapter" preceding "whether living" in the first sentence.

Amendments--1975 (Adj. Sess.). Substituted "a" for "his" preceding "last will" and "either parent" for "a father" thereafter and deleted "his" preceding "minor" in the first sentence.

Prior law. 14 V.S.A. § 2655.

Law review commentaries

Law review. The Appointment of Guardians by Will: A Comparison of Vermont's Statutory Provisions with the Provisions of the Uniform Probate Code, see 4 Vt. L. Rev. 275 (1979).

Estate Planning for the Family with a Disabled Child, see 14 Vt. L. Rev. 529 (1990).

§ 2657. Guardian ad litem.

Nothing in this chapter shall take away the power of a court to appoint a guardian to defend the interests of a minor impleaded in such court, or interested in an action or matter therein pending, or its power to appoint or allow a person, as next friend of a minor, to commence, prosecute, or defend an action in his behalf.

History

Source. V.S. 1947, § 3307. P.L. § 3216. G.L. § 3649. P.S. § 3157. V.S. § 2749. R.L. § 2434. G.S. 72, § 10. R.S. 65, § 34.

Prior law. 14 V.S.A. § 2656.

Cross References

Cross references. Appointment of guardian ad litem in civil action, see Rule 17, Vermont Rules of Civil Procedure.

Appointment of guardian ad litem in probate proceeding, see Rule 18(c), Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Construction with other law.

Section 2643 of this title, governing release by superior court and parent on behalf of a minor in the settlement of any claim, establishes the authority of a parent to release the claims of a minor, and that authority is not contained in this section, governing appointment of a guardian ad litem for a minor. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

2. Powers of guardian ad litem or next friend.

This section does not authorize the guardian ad litem to compromise or settle claims of the minor. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

Father of minor child, bringing suit in negligence case on her behalf as her parent or next friend, had no greater authority to settle her claims than would a guardian ad litem. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

This section empowered trial court to allow father to bring suit on behalf of minor daughter as her next friend, but did not authorize the father as next friend of the minor daughter to compromise or settle the minor's claims. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

§ 2658. Powers of guardian.

A guardian for a minor appointed by Probate Division of the Superior Court, as provided in this chapter, in the name and right of his or her ward, may receive, sue for, and recover debts and demands due to the ward. He or she may maintain and defend actions or suits when necessary for the recovery or protection of the property or person of his or her ward, settle accounts, demands, claims, and actions by or against his or her ward, including actions for injuries to the person or property of such ward and compromise, release, and discharge the same on such terms as he or she deems just and beneficial to his or her ward.

Added 1979, No. 76 , § 2; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. Deleted "at law or in equity" following "claims and actions" to conform reference to Rule 2, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

ANNOTATIONS

Cited. Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982).

ARTICLE 1A. Financial Guardians of Minors

§ 2659. Financial guardianship; minors.

  1. The Probate Division may appoint a financial guardian for a minor pursuant to this section if the minor is the owner of real or personal property. A financial guardian appointed pursuant to this section shall have the care and management of the estate of the minor but shall not have custody of the minor.
    1. A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall state: (b) (1)  A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall state:
      1. the names and addresses of the parents, the child, and the proposed guardian;
      2. the proposed guardian's relationship to the child; and
      3. any real and personal property owned by the minor.
    2. A petition for financial guardianship of a minor under this section shall be served on all parties and interested persons as provided by Rule 4 of the Vermont Rules of Probate Procedure.
  3. The Probate Division shall schedule a hearing upon the filing of the petition and shall provide notice of the hearing to all parties.
  4. If the court grants the petition for financial guardianship of the minor, the court shall enter an order establishing a financial guardianship, naming the proposed guardian as the child's financial guardian, and specifying the powers and duties of the guardian.
  5. The duties of a financial guardian shall include the duty to:
    1. pursue, receive, and manage any property right of the minor's, including inheritances, insurance benefits, litigation proceeds, or any other real or personal property, provided the benefits or property shall not be expended without prior court approval;
    2. deposit any cash resources of the minor in accounts established for the guardianship, provided the cash resources of the minor shall not be comingled with the guardian's assets;
    3. responsibly invest and reinvest the cash resources of the minor;
    4. obtain court approval for expenditures of funds to meet extraordinary needs of the minor which cannot be met with other family resources;
    5. establish with court approval:
      1. special needs trusts;
      2. trusts for the benefit of the minor payable over the minor's lifetime or for such shorter periods as deemed reasonable; or
      3. structured settlements providing for payment of litigation proceeds over the minor's lifetime or for such shorter periods as deemed reasonable; and
    6. file an annual financial accounting with the Probate Division of the Superior Court stating the funds received, managed, and spent on behalf of the minor.

      Added 2013, No. 170 (Adj. Sess.), § 2, eff. Sept. 1, 2014; amended 2017, No. 195 (Adj. Sess.), § 18.

History

Amendments--2017 (Adj. Sess.). Subsec. (e): Amended generally.

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this section] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 2660. Statement of legislative intent.

  1. The creation of a permanent guardianship for minors provides the opportunity for a child, whose circumstances make returning to the care of the parents not reasonably possible, to be placed in a stable and nurturing home for the duration of the child's minority. The creation of a permanent guardianship offers the additional benefit of permitting continued contact between a child and the child's parents.
  2. The Family Division of the Superior Court is not required to address and rule out each of the other potential disposition options once it has concluded that termination of parental rights is in a child's best interests.

    Added 2015, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2016.

ANNOTATIONS

1. Consideration Before Terminating Parental Rights.

By statute, the family division was not required to rule out permanent guardianship possibilities before terminating parental rights, and neither parent had advocated such a guardianship for the paternal grandmother at the time of the termination decision. In re C.B., - Vt. - , - A.3d - (Sept. 25, 2020).

ARTICLE 1B. Permanent Guardianship for Minors

History

Termination of article 1999, No. 162 (Adj. Sess.), § 3, provided that this article, relating to permanent guardianship for minors, will terminate on June 30, 2003.

Repeal of termination date. 1999, No. 162 (Adj. Sess.), § 3, provided for the termination of this article on June 30, 2003; however, that provision was repealed by 2003, No. 58 , § 4.

Redesignation of subchapter. This subchapter, which was originally enacted as Article 1A of this title by 1999, No. 162 (Adj. Sess.), § 2 was redesignated as Article 1B pursuant to 2013, No. 170 (Adj. Sess.), § 3.

§ 2661. Definitions.

For the purposes of this article:

  1. "Best interests of the child" means a determination, based on consideration of all relevant factors and available options, of circumstances that will best provide the child with at a minimum all the following:
    1. Adequate food.
    2. Clothing.
    3. Health care.
    4. Any other material needs.
    5. A safe and nurturing environment that meets the child's present and future developmental needs and promotes appropriate interactions and relationships with family members, foster family, and other people who will play a constructive role in the child's life.
    6. Support to help the child adjust to home, school, and community.
  2. "Parent" means the parent or parents of a minor.
  3. "Permanent guardian" means one or two adults appointed by the court to act as a parent for a child during the child's minority.
  4. "Permanent guardianship" means a legal guardianship of a minor that is intended to continue with the same guardian, based on the guardian's express commitment, for the duration of the child's minority.
  5. "Relative" means a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of a person, whether related to the person by the whole or the half blood, affinity, or adoption. The term does not include a person's stepparent.

    Added 1999, No. 162 (Adj. Sess.), § 2.

§ 2662. Permanent guardian; rights and obligations.

  1. A permanent guardian shall have parental rights and responsibilities for the child that include:
    1. Providing the child with:
      1. A healthy and safe living environment and daily care.
      2. Education.
      3. Necessary and appropriate health care, including medical, dental, and mental health care.
    2. Making decisions regarding:
      1. Travel.
      2. Management of the child's income and assets.
      3. The child's right to marry or enlist in the armed forces.
      4. Representation of the child in legal actions.
      5. Any other matter that involves the child's welfare and upbringing.
  2. The permanent guardian shall:
    1. Before appointment, expressly commit to remain the permanent guardian and assume the parental rights and responsibilities for the child for the duration of the child's minority.
    2. Be responsible to the court and the child for the health, education and welfare of the minor.
    3. Comply with all terms of any court order to provide the child's parent with visitation, contact or information.

      Added 1999, No. 162 (Adj. Sess.), § 2.

§ 2663. Parent of the minor; rights and obligations; support.

  1. While a permanent guardianship is in effect, the parent shall have the following rights:
    1. Visitation, contact and information to the extent delineated in the order issued by the family division of the superior court. The family division of the superior court shall issue an order regarding visitation, contact and information based on the best interests of the child. The order may prohibit visitation, contact and information. The order may incorporate an agreement reached among the parties.
    2. Inheritance by and from the child.
    3. Right to consent to adoption of the child.
  2. After the court has issued a final order establishing permanent guardianship, the parent shall have no right to seek termination of the guardianship order. The parent may seek only enforcement or modification of an order of visitation, contact or information.
  3. The parent shall have the primary responsibility to support the child.
    1. In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.
    2. If the child has been in the custody of the Commissioner for Children and Families immediately prior to the creation of the guardianship, the Commissioner shall have no further duty of support or care for the child after the establishment of the permanent guardianship unless the family is eligible for kinship guardianship assistance provided for in 33 V.S.A. § 4903 or the Commissioner contractually agrees in writing to that support.

      Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 5; 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Subdiv. (a)(1): Act No. 154 substituted "family division of the superior court" for "family court" in two places.

Subdiv. (c)(2): Act No. 97 substituted "for children and families" for "of social and rehabilitation services" and inserted "the family is eligible for kinship guardianship assistance provided for in 33 V.S.A. § 4903 or".

§ 2664. Creation of permanent guardianship.

  1. The Family Division of the Superior Court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding pursuant to 33 V.S.A. § 5318 or a delinquency proceeding pursuant to 33 V.S.A. § 5232 . The court shall also issue an order permitting or denying visitation, contact, or information with the parent at the same time the order of permanent guardianship is issued. Before issuing an order for permanent guardianship, the court shall find by clear and convincing evidence all of the following:
    1. Neither parent is able to assume or resume parental duties within a reasonable time.
    2. The child has resided with the permanent guardian for at least six months.
    3. A permanent guardianship is in the best interests of the child.
    4. The proposed permanent guardian:
        1. is emotionally, mentally, and physically suitable to become the permanent guardian; and (A) (i) is emotionally, mentally, and physically suitable to become the permanent guardian; and
        2. is financially suitable, with kinship guardianship assistance provided for in 33 V.S.A. § 4903 if applicable, to become the permanent guardian;
      2. has expressly committed to remain the permanent guardian for the duration of the child's minority; and
      3. has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any resulting loss of State or federal benefits or other assistance.
  2. The parent voluntarily may consent to the permanent guardianship, and shall demonstrate an understanding of the implications and obligations of the consent.
  3. After the Family Division of the Superior Court issues a final order establishing permanent guardianship, the case shall be transferred to the appropriate Probate Division of the Superior Court in the district in which the permanent guardian resides. Jurisdiction shall continue to lie in the Probate Division. Appeal of any decision by the Probate Division of the Superior Court shall be de novo to the Family Division.
  4. The Family Division of the Superior Court may name a successor permanent guardian in the initial permanent guardianship order. Prior to issuing an order naming a successor permanent guardian, the court shall find by clear and convincing evidence that the named successor permanent guardian meets the criteria in subdivision (a)(4) of this section. In the event that the permanent guardian dies or the guardianship is terminated by the Probate Division of the Superior Court, if a successor guardian is named in the initial order, custody of the child transfers to the successor guardian pursuant to subsection 2666(b) of this title.

    Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), §§ 123, 123a; 2015, No. 170 (Adj. Sess.), § 2, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Act No. 97 substituted " § 5318" for " § 5528" and " § 5232" for " § 5529" in the first sentence of the introductory paragraph.

Act No. 154 inserted "division of the superior" preceding "court" in the first sentence of the introductory paragraph.

Subdiv. (a)(2): Act No. 97 substituted "likely within a reasonable period of time" for "reasonably likely during the remainder of the child's minority".

Subdiv. (a)(4): Act No. 97 substituted "or" for "unless" preceding "the permanent" and added "and with whom the child has resided for at least six months" following "relationship".

Subdiv. (a)(6)(A): Act No. 97 designated the existing provisions as subdiv. (i), and in that item, inserted "and" preceding "physically" and deleted "and financially" thereafter, and added subdiv. (ii).

Subsec. (c): Act No. 154 inserted "division of the superior" preceding "court" in the first sentence, substituted "division" for "court" following "probate" in the second sentence, and inserted "division of the superior" preceding "court" and substituted "division" for "court" in the third sentence.

ANNOTATIONS

Analysis

1. Adoption.

This section is limited in its application to cases in which adoption of the child or return to the child's parents is not reasonably likely, and it did not apply in a termination proceeding where a foster family had expressed a willingness and a desire to adopt the children and the trial court found that return of the children to their father could not occur within a reasonable time, thereby making adoption a likely possibility. In re A.S. & K.S., 171 Vt. 369, 764 A.2d 1188 (2000).

2. Required findings.

Family court's permanency order was required to be reversed because the court failed to find that adoption of children was not reasonably likely during the remainder of their minority, as required by subdivision (a)(2) of this section. In re D.G., 180 Vt. 577, 904 A.2d 1206 (mem.) (July 24, 2006).

§ 2665. Reports.

The permanent guardian shall file a written report on the status of the child to the Probate Division of the Superior Court annually pursuant to subdivision 2629(b)(6) of this title and at any other time the court may order.

Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 170 (Adj. Sess.), § 3, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in the introductory paragraph and in subdiv. (4).

§ 2666. Modification; termination.

  1. A modification or termination of the permanent guardianship may be requested by the permanent guardian, the child if the child is age 14 or older, or the Commissioner for Children and Families. A modification or termination may also be ordered by the Probate Division of the Superior Court on its own initiative.
  2. Where the permanent guardianship is terminated by the Probate Division of the Superior Court order or the death of the permanent guardian, the custody and guardianship of the child shall not revert to the parent, but to the Commissioner for Children and Families as if the child had been abandoned. If a successor permanent guardian has been named in the initial permanent guardianship order, custody shall transfer to the successor guardian, without reverting first to the Commissioner. The Probate Division of the Superior Court shall notify the Department when custody transfers to the Commissioner or the successor guardian. At any time during the first six months of the successor guardianship, the Probate Division may, upon its own motion and independent of its regular review process, hold a hearing to determine, by a preponderance of the evidence, whether the successor permanent guardian continues to meet the requirements under subdivision 2664(a)(4) of this title.
    1. Upon the death of the permanent guardian or when the permanent guardianship is otherwise terminated by order of the Probate Division, the Probate Division shall issue an order placing the child in the custody of the Commissioner and shall immediately notify the Department for Children and Families, the State's Attorney, and the Family Division.
    2. The order transferring the child's legal custody to the Commissioner shall have the same legal effect as a similar order issued by the Family Division under the authority of 33 V.S.A. chapters 51-53.
    3. After the Probate Division issues the order transferring legal custody of the child, the State shall commence proceedings under the authority of 33 V.S.A. chapters 51-53 as if the child were abandoned.
  3. An order for modification or termination of the permanent guardianship shall be based on a finding by a preponderance of the evidence that there has been a substantial change in material circumstances, or that one or more findings required by subsection 2664(a) of this title no longer can be supported by the evidence, and that the proposed modification or termination is in the best interests of the child.
  4. The burden of proof shall be on the party seeking the modification or termination.
  5. In the event that it is necessary to appoint a successor permanent guardian, the parent may be considered with no greater priority than a third party.

    Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 6; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 153 (Adj. Sess.), § 23; 2015, No. 170 (Adj. Sess.), § 4, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Subsec. (b): Amended generally by Act Nos. 153 and 170.

Amendments--2015 (Adj. Sess.). Subdivs. (b)(1) through (b)(3): Added by Act No. 153.

Amendments--2009 (Adj. Sess.) Act No. 97 substituted "for children and families" for "of social and rehabilitation services" following "the commissioner" in the first sentence of subsec. (a) and in subsec. (b).

Act No. 154 substituted "probate division of the superior court" for "probate court" in the second sentence of subsec. (a) and in subsec. (b).

§ 2667. Order for visitation, contact, or information; immediate harm to the minor.

  1. The Probate Division of the Superior Court shall have exclusive jurisdiction to hear any action to enforce, modify, or terminate the initial order issued by the Family Division of the Superior Court for visitation, contact, or information.
  2. Upon a showing by affidavit of immediate harm to the child, the Probate Division of the Superior Court may temporarily stay the order of visitation or contact on an ex parte basis until a hearing can be held, or stay the order of permanent guardianship and transfer legal custody of the child to the Commissioner for Children and Families.
    1. The order transferring the child's legal custody to the Commissioner shall have the same legal effect as a similar order issued by the Family Division under the authority of 33 V.S.A. chapters 51-53.
    2. The Probate Division shall then immediately notify the Department for Children and Families, the State's Attorney, and the Family Division when it has issued an order transferring the child's legal custody to the Commissioner, and nothing in this subsection shall prohibit the State from commencing proceedings under 33 V.S.A. chapters 51-53.
  3. Nothing in this section shall limit the jurisdiction of the Family Division of the Superior Court to enter an abuse prevention order pursuant to 15 V.S.A. chapter 21. A breach by the permanent guardian of an order for visitation, contact or information shall not be grounds for voiding or terminating the permanent guardianship. However, the court may enforce the order with all the powers and remedies of the court, including contempt.
  4. A modification of an order of visitation or contact shall be based upon a finding by a preponderance of the evidence that there has been a substantial change in the material circumstances, and that the proposed modification is in the best interests of the child.

    Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 238; No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 153 (Adj. Sess.), § 24.

History

Amendments--2015 (Adj. Sess.). Subsec. (b): Substituted "transfer legal custody of the child" for "assign parental rights and responsibilities".

Subdivs. (b)(1) and (b)(2): Added.

Amendments--2009 (Adj. Sess.) Act No. 97 substituted "for children and families" for "of social and rehabilitation services" following "commissioner" in subsec. (b).

Act No. 154, § 238 substituted "family division of the superior court" for "family court" in subsecs. (a) and (c).

Act No. 154, § 238a substituted "probate division of the superior court" for "probate court" in subsecs. (a) and (b).

ARTICLE 2. Infirm Persons

§ 2671. Voluntary guardianship.

  1. Any person of at least 18 years of age, who desires assistance with the management of his or her affairs, may file a petition with the Probate Division of the Superior Court requesting the appointment of a guardian.
  2. The petition shall:
    1. state that the petitioner understands the nature, extent, and consequences of the guardianship;
    2. specify which of the powers of the guardian as set forth in section 3069 of this title petitioner requests to be exercised by the guardian; and
    3. specify which individual the petitioner requests to be appointed guardian.
  3. A person who requests that a voluntary guardian be appointed shall appear before the court, if physically able.  If not physically able to appear, the petition shall be accompanied by a letter from a physician or qualified mental health professional stating that the petitioner understands the nature, extent, and consequences of the guardianship requested and the procedure for revoking the guardianship.  The letter may support a finding by the court that the petitioner does, in fact, understand the nature, extent, and consequences of the guardianship requested and the procedure for revoking the guardianship.
    1. The court shall hold a hearing on the petition, with notice to the petitioner and the proposed guardian. (d) (1)  The court shall hold a hearing on the petition, with notice to the petitioner and the proposed guardian.
    2. At the hearing, the court shall explain to the petitioner the nature, extent, and consequences of the proposed guardianship and determine if the petitioner agrees to the appointment of the named guardian.
    3. At the hearing, the court shall explain to the petitioner the procedures for terminating the guardianship.
    4. After the hearing, the court shall make findings on the following issues:
      1. whether the petitioner is uncoerced;
      2. whether the petitioner understands the nature, extent, and consequences of the proposed guardianship; and
      3. whether the petitioner understands the procedures for terminating the guardianship.
  5. The court may order that the petitioner be evaluated by a person who has specific training and demonstrated competence to evaluate the petitioner. The scope of the evaluation shall be limited to whether the petitioner understands the nature, extent, and consequences of the guardianship requested and the procedures for revoking the guardianship.
  6. If after the hearing the court finds that the petitioner is uncoerced, understands the nature, extent, and consequences of the proposed guardianship, and understands the procedures for terminating the guardianship, it shall enter judgment specifying the powers of the guardian as requested in the petition. The court shall mail a copy of its order to the petitioner and the guardian, and it shall attach to the order a notification to the petitioner setting forth the procedures for terminating the guardianship.
  7. If the court finds that the petitioner does not meet the criteria set forth in subsection (d) of this section, it shall dismiss the petition; provided, however, that if the court finds that the petitioner does not understand the nature, extent, and consequences of the guardianship and in the court's opinion requires assistance with the management of his or her personal or financial affairs, the court may treat the petition as if filed pursuant to section 3063 of this title.
  8. The person under guardianship may, at any time, file a motion to revoke the guardianship. Upon receipt of the motion, the court shall give notice as provided by the Rules of Probate Procedure. Unless the guardian files a motion pursuant to section 3063 of this title within 14 days from the date of the notice, the court shall enter judgment revoking the guardianship and shall provide the ward and the guardian with a copy of the judgment.
    1. Any person interested in the welfare of the person under guardianship, as defined by section 3061 of this chapter, may petition the court where venue lies for termination of the guardianship. Grounds for termination of the guardianship shall be: (i) (1)  Any person interested in the welfare of the person under guardianship, as defined by section 3061 of this chapter, may petition the court where venue lies for termination of the guardianship. Grounds for termination of the guardianship shall be:
      1. failure to render an account after having been duly cited by the court;
      2. failure to perform an order or decree of the court;
      3. a finding that the guardian has become incapable of or unsuitable for exercising his or her powers; or
      4. the death of the guardian.
    2. The court may also consider termination of the guardianship on the court's own motion.
  10. The guardian shall file an annual report with the appointing court within 30 days of the anniversary date of appointment containing the information required by section 3076 of this title.
  11. The court shall mail an annual notice on the anniversary date of the appointment of the guardian to the person under a guardianship setting forth the procedure for terminating the guardianship and the right of the person under guardianship to receive and review the annual reports filed by the guardian.
  12. At the termination of a voluntary guardianship, the guardian shall render a final accounting as required by section 2921 of this title.
  13. The guardian shall not be paid any fees to which the guardian may be entitled from the estate of the person under guardianship until the annual reports or final accounting required by this section have been filed with the court.

    Amended 1979, No. 76 , § 3; 1985, No. 144 (Adj. Sess.), § 123; 2009, No. 97 (Adj. Sess.), § 9; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 11 , § 34.

History

Source. V.S. 1947, § 3308. P.L. § 3217. 1933, No. 157 , § 3007. G.L. § 3650. 1917, No. 254 , § 3601. 1912, No. 112 .

Amendments--2017. Subsec. (h): Substituted "14" for "10" preceding "days" in the third sentence.

Amendments--2009 (Adj. Sess.) Subsec. (a): Act No. 97 substituted "18" for "eighteen".

Act No. 154 substituted "probate division of the superior court" for "probate court".

Subdiv. (b)(1): Act No. 97 substituted "understands the nature, extent, and consequences of the guardianship" for "is not mentally ill or mentally retarded".

Subsecs. (d)-(f): Amended generally by Act No. 97.

Subsec. (g): Act No. 97 substituted "does not understand the nature, extent, and consequences of the guardianship and in the court's opinion requires assistance with the management of his or her personal or financial affairs" for "is mentally ill or mentally retarded".

Subsec. (h): Act No. 97 substituted "person under guardianship" for "ward" in the first sentence.

Subsec. (i): Act No. 97 designated the subsec. as subdiv. (1) and redesignated former subdivs. (1)-(4) as subdivs. (A)-(D), and designated the undesignated paragraph as subdiv. (2), and in subdiv. (i)(1), substituted "person under guardianship" for "ward" and made a gender neutral change in sudiv. (1)(C).

Subsec. (j): Act No. 97 substituted "within 30 days of" for "on".

Subsecs. (k)-( l ): Act No. 97 rewrote as subsecs. (k)-(m).

Amendments--1985 (Adj. Sess.). Subsec. (a): Inserted "or her" following "his" and deleted "for himself" following "guardian".

Subsec. (c): Deleted "for him" following "appointed" in the first sentence and "he is" following "if" at the beginning of the second sentence and substituted "the" for "such" preceding "letter" at the beginning of the third sentence.

Subsec. (h): Substituted "file a motion" for "petition the court" following "time" in the first sentence, rewrote the second sentence, and substituted "motion" for "petition" preceding "pursuant" in the third sentence.

Subsec. (i): Rewrote the first sentence.

Subsec. (j): Deleted "his" following "date of".

Subsec. (l): Substituted "the guardian" for "he" following "which".

Amendments--1979. Section amended generally.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

Service of motion to revoke voluntary guardianship, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 2672. Repealed. 1979, No. 76, § 20.

History

Former § 2672, relating to appointment and duties of legal representatives, was derived from 1967, No. 147 , § 14.

ARTICLE 3. Spendthrifts

§ 2681. Spendthrift, defined.

The word "spendthrift" shall be held to include every person who is liable to be put under guardianship on account of excessive drinking, gambling, idleness, or debauchery.

History

Source. V.S. 1947, § 3309. P.L. § 3218. G.L. § 3651. P.S. § 3158. V.S. § 2750. R.L. § 2435. G.S. 72, § 11. R.S. 65, § 65.

§ 2682. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).

History

Former § 2682, relating to guardian appointment for spendthrifts, was derived from V.S. 1947, § 3311; P.L. § 3220; G.L. § 3653; P.S. § 3160; V.S. § 2752; R.L. § 2437; G.S. 72, § 13; R.S. 65, § 9; 1821, p. 70; R. 1797, p. 271, § 14; R. 1787, p. 113, § 10 and amended by 1967, No. 147 , § 15 and 1999, No. 147 (Adj. Sess.), § 4.

§ 2683. Repealed. 1979, No. 76, § 20.

History

Former § 2683, relating to appointment of guardian for mentally incapable person, was derived from 1951, No. 62 , § 1; V.S. 1947, § 3310; P.L. § 3219; G.L. § 3652; P.S. § 3159; 1896, No. 52 , § 1; V.S. § 2751; R.L. § 2436; 1876, No. 76 , § 1; 1874, No. 69 , § 1; G.S. 72 § 12; R.S. 65, § 8; 1821, p. 70; R. 1797, p. 376, § 1, and amended by 1967, No. 147 , § 16.

§ 2684. Spendthrift; hearing; notice.

When a petition is filed for the appointment of a guardian under section 2682 of this title, the Probate Division of the Superior Court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

Amended 1979, No. 76 , § 16; 1985, No. 144 (Adj. Sess.), § 124; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3312. P.L. § 3221. G.L. § 3654. P.S. § 3161. 1902, No. 52 , § 1. V.S. § 2753. R.L. § 2438. 1876, No. 76 , § 2. 1866, No. 36 . G.S. 72, § 14. 1848, No. 42 , § 1. R.S. 65, § 8. 1821, p. 70. R. 1797, p. 271, § 14.

Reference in text. Section 2682, referred to in this section, was repealed by 2005, No. 175 (Adj. Sess.), § 140(3).

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979. Deleted "mentally incapable person and" preceding "spendthrift" in the section heading and substituted "section 2682" for "either of sections 2682 or 2683" in the first sentence, "a spouse" for "her husband" preceding "is sought" and "spouse" for "married woman" following "guardian of a" and for "husband" following "given to the" in the second sentence.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Protective services for mentally retarded persons, see § 9301 et seq. of Title 18.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Notice.

Appointment by probate court of a guardian for person whom it adjudges incapable of caring for himself and his property was a nullity where it did not affirmatively appear that the six days' notice of application for appointment was given. Mason's Guardian v. Mason, 86 Vt. 279, 84 A. 969 (1912).

If a guardian is appointed to an idiot, non compos, lunatic or distracted person without any notice being given to such person by authority making the inquisition, or by court of probate, the appointment is void. Shumway v. Shumway, 2 Vt. 339 (1829).

Appointment, though voidable for want of notice, was not void and guardian might well act under such appointment until his letters were repealed, and had a right to account before the probate court. Cleveland v. Hopkins, 2 Aik. 394 (1827).

2. Evidence.

Question whether witness thought defendant had mental ability and was capable of caring for himself and property was asking witness to give an opinion on a question of law. Town of Londonderry v. Fryor, 84 Vt. 294, 79 A. 46 (1911).

§ 2685. Decree; appeal.

On hearing the parties interested, the court shall make decree in the premises as appears just. The person complained of may appeal from such decree without giving bond, but during the pendency thereof, the person so appointed shall act as guardian.

History

Source. V.S. 1947, § 3313. P.L. § 3222. G.L. § 3655. P.S. § 3162. V.S. § 2754. R.L. § 2439. 1866, No. 36 . G.S. 72, § 14. 1848, No. 42 , § 1. R.S. 65, §§ 4, 5, 8. 1821, p. 70. R. 1797, p. 271, § 14. R. 1787, pp. 112, 113.

ANNOTATIONS

Analysis

1. Construction with other laws.

Section 2555 of Title 12, conferring right of appeal upon "a person interested in an order, sentence or denial of a probate court . . . except as otherwise provided by law," related to decrees made during settlement of decedents' estates, and not to appointment of guardians, as to which it is "otherwise provided by law," namely, this section, that the party proceeded against may appeal, and therefore express grant of right to him excluded inference that it belonged to every person interested. In re Varnum, 70 Vt. 147, 40 A. 43 (1897).

2. Persons entitled to appeal.

Friend or relative, in case where no guardian is appointed, and guardian, in case where decision is that ward is no longer a proper subject of guardianship, were not entitled to an appeal. Nimblet v. Chaffee, 24 Vt. 628 (1852).

§ 2686. Repealed. 1979, No. 76, § 20.

History

Former § 2686, relating to appointment of guardian for absconding person, was derived from V.S. 1947, § 3315; P.L. § 3224; G.L. § 3657; P.S. § 3164; V.S. § 2756; R.L. § 2441; G.S. 72, § 15; R.S. 65, § 12; R. 1797, p. 276, § 19; R. 1787, p. 113, and amended by 1967, No. 147 , § 17.

§ 2687. Expense of resisting application.

When the Probate Division of the Superior Court appoints a guardian for a spendthrift or a mentally disabled person, it may allow for the expenses of the ward in defending against the petition such sum out of the ward's estate as appears to be reasonable.

Amended 1979, No. 76 , § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3314. P.L. § 3223. G.L. § 3656. P.S. § 3163. R. 1906, § 3042. 1896, No. 52 , § 1. V.S. § 2755. R.L. § 2440. G.S. 72, § 27. R.S. 65, § 59.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1979. Section amended generally.

§ 2688. Repealed. 1967, No. 147, § 53(b), eff. Oct. 1, 1968.

History

Former § 2688, relating to filing copy of petition, was derived from V.S. 1947, § 3316; P.L. § 3225; G.L. § 3658; P.S. § 3165; 1896, No. 52 , § 1; V.S. § 2757; R.L. § 2442; G.S. 72, § 16; 1848, No. 42 , § 2; R.S. 65, § 15. The subject matter is now covered by § 2689 of this title.

§ 2689. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).

History

Former § 2689, relating to petition filing for guardian appointment, was derived from 1967, No. 147 , § 18 and amended by 1979, No. 76 , § 17; 1985, No. 144 (Adj. Sess.), § 125 and 1999, No. 147 (Adj. Sess.), § 4.

§ 2690. Guardian to give notice that ward's contracts and transfers will be void.

As soon as possible after appointment, the guardian of a spendthrift shall give notice of the appointment as provided by the Rules of Probate Procedure and shall give similar notice that contracts made by the ward will be held void. Contracts, gifts, sales, or transfers of real or personal estate made by the ward after the date of appointment of the guardian shall be void.

Amended 1979, No. 76 , § 18; 1985, No. 144 (Adj. Sess.), § 126.

History

Source. V.S. 1947, § 3317. P.L. § 3226. G.L. § 3659. 1917, No. 254 , § 3610. P.S. § 3166. V.S. § 2758. R.L. § 2443. G.S. 72, § 50. R.S. 65, § 14. R. 1797, p. 271, §§ 14, 15, 16. R. 1787, pp. 113, 114.

Amendments--1985 (Adj. Sess.). Deleted "his" following "after" and substituted "as provided by the rules of probate procedure" for "by publication for three successive weeks in a newspaper designated by the court" preceding "and shall" in the first sentence.

Amendments--1979. Section amended generally.

Prior law. 14 V.S.A. § 2689.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Contracts for necessaries by ward.

An adjudication of insanity and appointment of guardian by probate court was not conclusive against ability of ward to make a valid contract for necessaries. Stannard v. Burns' Administrator, 63 Vt. 244, 22 A. 460 (1891).

2. Notice.

Provision of this section requiring guardian to post notice in three public places in town where ward or his wife and children resided had to be strictly complied with, to enable guardian to avoid contracts made by ward with persons ignorant of his disability. Ellis v. Cramton & Chaffee, 50 Vt. 608 (1878).

§ 2691. Spouse to support and have custody.

The appointment of a guardian for a person who is married shall not relieve the ward's spouse from liability to support the spouse, nor shall it deprive the spouse of the custody of the ward provided the spouse is suitable and competent to care for the ward.

Amended 1979, No. 76 , § 5.

History

Source. V.S. 1947, § 3318. P.L. § 3227. G.L. § 3660. P.S. § 3167. V.S. § 2759. R.L. § 2444. 1876, No. 76 , § 3.

Amendments--1979. Section amended generally.

Prior law. 14 V.S.A. § 2690.

§ 2692. Extent of guardian's control.

Until they are legally discharged, guardians of spendthrifts shall have the possession and management of the estates of their wards.

Amended 1979, No. 76 , § 19.

History

Source. V.S. 1947, § 3319. P.L. §§ 3228, 3229. G.L. §§ 3661, 3662. P.S. §§ 3168, 3169. 1898, No. 58 , § 1. V.S. § 2760. R.L. § 2445. G.S. 72, §§ 25, 49. R.S. 65, §§ 16, 26. R. 1797, p. 271, § 14. R. 1797, p. 276, § 19. R. 1787, p. 113.

Revision note. Deleted comma following "spendthrifts" to correct a grammatical error.

Amendments--1979. Section amended generally.

Prior law. 14 V.S.A. § 2691.

§ 2693. Married woman may be guardian.

A married woman may be appointed guardian of her husband or of any other person under the provisions of this chapter and, when so appointed, shall have the same rights, powers, and privileges and be subject to the same liabilities as if she were unmarried.

History

Source. V.S. 1947, § 3320. P.L. § 3230. G.L. § 3663. P.S. § 3170. V.S. § 2761. 1894, No. 63 . 1888, No. 80 .

Prior law. 14 V.S.A. § 2692.

Cross References

Cross references. Rights of married women generally, see § 61 et seq. of Title 15.

§ 2694. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 2694, relating to appearance of guardian in action by or against ward, was derived from V.S. 1947, § 3321; P.L. § 3231; G.L. § 3664; 1917, No. 254 , § 3615; P.S. § 3171; V.S. § 2762; R.L. § 2446; 1880, No. 61 . The subject matter is now covered by Rule 17, Vermont Rules of Civil Procedure.

ARTICLE 4. Nonresidents

§ 2711. Nonresidents; powers of guardian.

When on the petition of a nonresident person, or other person interested in the welfare of that person, it appears that the person owns or has an interest in real or personal estate situated in this State, and that the person, if a resident, would be liable to be put under guardianship under any of the provisions of this chapter, the Probate Division of the Superior Court may appoint a guardian as to the property of that person within this State. As to such property, the guardian shall have the same powers, rights, and duties as a guardian appointed for a person residing within the State.

Amended 1985, No. 144 (Adj. Sess.), § 127; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3322. P.L. § 3232. 1927, No. 51 , § 1.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Cross References

Cross references. Appointment of guardians of persons of nonresident minors, see § 2649 of this title.

ANNOTATIONS

1. Nonresident.

Probate court had authority under this section to appoint a guardian for a nonresident minor who was injured in an automobile accident in this state, since, if she were a resident, she would qualify under section 2645(5) of this title for the appointment of a guardian over her property, which consisted of the pending lawsuit. Matson by Kehoe v. Anctil, 979 F. Supp. 1031 (D. Vt. 1997).

§ 2712. Hearing.

When petition is made for the appointment of a guardian under section 2711 of this title, the Probate Division of the Superior Court shall proceed under the Rules of Probate Procedure as in cases of the appointment of guardians of resident mentally disabled persons.

Amended 1971, No. 185 (Adj. Sess.), § 179, eff. March 29, 1972; 1979, No. 76 , § 6; 1985, No. 144 (Adj. Sess.), § 128; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3323. P.L. § 3233. 1927, No. 51 , § 2.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979. Deleted "bond" following "hearing" in the section heading and inserted "mentally disabled" preceding "persons, except" in the first sentence and deleted the former second and third sentences.

Amendments--1971 (Adj. Sess.). Substituted "such manner as the supreme court may by rule provide for service of process in civil actions" for "the manner provided by sections 911-913 of Title 12" following "petitioner" in the first sentence and made minor changes in phraseology in the second and third sentences.

§ 2641. Parents as joint guardians.

Subchapter 3. Bonds

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§ 2751. Bonds; how conditioned.

Before acting as such, a guardian appointed by the Probate Division of the Superior Court shall give a bond with sureties in a sum as the court directs, conditioned as follows:

  1. to make a true inventory of the real and personal estate of the ward coming to the guardian's possession or knowledge and file the original with the court and serve copies of it as provided by the Rules of Probate Procedure;
  2. to manage and dispose of the estate and effects according to law and for the best interest of the ward and faithfully discharge the trust in relation thereto;
  3. to render an account of the property of the ward in the guardian's hands, including the proceeds of real estate sold by the guardian, and of the management and disposition of the same, within one year after appointment, if the ward has real or personal estate, or within one year after such estate comes to the guardian's possession or knowledge, and at other times as the court directs;
  4. at the expiration of the trust, to render and settle the account and pay over and deliver the estate and effects remaining in the guardian's hands or due from settlement to the persons legally entitled to the same.

    Amended 1985, No. 144 (Adj. Sess.), § 129; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3324. P.L. § 3234. 1923, No. 53 , § 6. 1919, No. 88 , § 6. G.L. § 3665. P.S. § 3172. V.S. § 2763. R.L. § 2447. G.S. 72, § 18. R.S. 65, § 17. 1821, p. 70. R. 1797, p. 257, §§ 93, 94. R. 1797, p. 379, § 5. R. 1787, p. 59.

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Substituted "a" for "such" preceding "sum" in the introductory paragraph, rewrote subdiv. (1), substituted "the guardian's" for "his" preceding "hands" and preceding "possession", "the guardian" for "him" following "sold by" and made other minor stylistic changes in subdiv. (3), and substituted "the" for "his" preceding "trust" and preceding "account" and "the guardian's" for "his" preceding "hands or due from" and deleted "him on such" thereafter in subdiv. (4).

Cross References

Cross references. Additional bond, see § 2753 of this title.

Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

New bond, see § 2754 of this title.

ANNOTATIONS

1. Conditions in bond.

Bond executed by a guardian and his sureties will be obligatory and effective if its condition is not strictly according to the requirements of this section, but provides, in different and more general terms, for faithful execution of guardian's trust. Probate Court v. Strong, 27 Vt. 202 (1853).

§ 2752. To respond for principal only; court may order income paid to parent.

When minor children inherit real or personal estate as the representatives of a deceased parent, or take the same by will, and the living parent of the children as guardian has the custody of their persons and estates, if the Probate Division of the Superior Court directs, the guardian shall furnish a bond to respond and pay the principal of the estate only. The income of the estate shall be expended at the discretion of the guardian for the benefit of the children without account to the court. When a person other than a parent of the children is their guardian and has the custody of their estates only, the court, from time to time, may order and direct the guardian to pay over to the parent of the children the part of the income of their estates, to be expended for their benefit as to the court seems just, in view of the relative value of the estate of the parent and the children.

Amended 1985, No. 144 (Adj. Sess.), § 130; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3325. P.L. § 3235. G.L. § 3666. P.S. § 3173. V.S. § 2764. R.L. § 2448. 1880, No. 57 . G.S. 48, § 24. 1857, No. 48 , § 1.

Revision note. In the third sentence, inserted "the" preceding "children is their guardian" for purposes of clarity.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Additional bond, see § 2753 of this title.

New bond, see § 2754 of this title.

§ 2753. Additional bond.

At any time the Probate Division of the Superior Court may require an additional bond of such guardian, to respond both principal and income, if the interest of the wards requires it.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3326. P.L. § 3236. G.L. § 3667. P.S. § 3174. V.S. § 2765. R.L. § 2449. G.S. 48, § 25. 1857, No. 48 , § 2.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

§ 2754. New bond.

A ward, the heir apparent of a ward, or a person interested in the welfare of a ward, as defined in section 3061 of this title, may file a motion with the Probate Division of the Superior Court to require the guardian to give a new and sufficient bond. If it appears to the court that the bond is insufficient, the court may order the guardian to give a new and sufficient bond. When it appears on the motion of a surety in a guardian's bond that the surety is liable to be injured thereby, the court may discharge the surety from future responsibility and order the guardian to give a new bond. After being notified of the order, if the guardian does not give a new bond, the court may remove the guardian and appoint some other person.

Amended 1985, No. 144 (Adj. Sess.), § 131; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3327. P.L. § 3237. G.L. § 3668. P.S. § 3175. V.S. § 2766. R.L. § 2450. G.S. 72, § 19. R.S. 65, § 18. 1821, p. 36. R. 1797, p. 258, § 95. R. 1797, p. 260, § 101. R. 1797, p. 379, § 5.

Revision note. Deleted subsec. (a) designation at the beginning of the section for purposes of conformity with V.S.A. style.

In the first sentence, substituted "section 3061 of this title" for "section 3061" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 2755. Limitation of action on bond.

An action shall not be maintained against the sureties in a bond given by a guardian, unless it is commenced within four years from the time the guardian is discharged. If the person entitled to commence the action is out of the State at the time of such discharge, he or she may commence such action within four years from the time he or she comes into the State.

History

Source. V.S. 1947, § 3328. P.L. § 3238. G.L. § 3669. P.S. § 3176. V.S. § 2767. R.L. § 2451. G.S. 72, § 20. R.S. 65, § 64.

ANNOTATIONS

1. Time of discharge.

Guardian of a minor ward was discharged, within meaning of this section, if not when the ward attained age of majority, which may be questioned, at latest when he had settled his guardianship account with probate court, and court had ordered him to pay over to ward money in his hands. Probate Court v. Child, 51 Vt. 82 (1878).

Subchapter 4. Inventory and Disposition of Estate

§ 2791. Inventory.

When his or her ward has estate, real or personal, a guardian appointed by the Probate Division of the Superior Court shall make and return an inventory thereof, agreeably to the condition of his or her bond.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3329. P.L. § 3239. G.L. § 3670. P.S. § 3177. V.S. § 2768. R.L. § 2452. G.S. 72, § 21. R.S. 65, § 22. 1821, p. 71. R. 1797, p. 258, § 96. R. 1797, p. 272, § 15. R. 1797, p. 276, § 19. R. 1797, p. 376, § 1. R. 1797, p. 379, § 5. R. 1787, p. 114.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

§ 2792. Appraisal to be made; exception.

Except in the following cases, such guardian shall cause the estate to be appraised by two or more disinterested persons, to be appointed by the Probate Division of the Superior Court:

  1. when all the estate of the ward is in money, stocks, notes or other demands;
  2. when the ward is a minor, and his or her estate, besides money, stocks, notes or other demands does not amount to the sum of $50.00;
  3. when the value of the estate appears by the records of the court to which the inventory is returnable.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3330. P.L. § 3240. G.L. § 3671. P.S. § 3178. V.S. § 2769. R.L. § 2453. G.S. 72, § 22. R.S. 65, § 23. R. 1797, p. 272, § 15. R. 1797, p. 276, § 19. R. 1787, p. 114.

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court".

Cross References

Cross references. Employment of appraisers by fiduciaries, see Rule 66, Vermont Rules of Probate Procedure.

§ 2793. Guardian to account for and dispose of personalty.

A guardian shall account for and dispose of the personal estate of his or her ward, as administrators account for and dispose of personal estate in the settlement of estates.

History

Source. V.S. 1947, § 3331. P.L. § 3241. G.L. § 3672. P.S. § 3179. V.S. § 2770. R.L. § 2454. G.S. 72, § 23. R.S. 65, § 24. 1821, p. 71. R. 1797, pp. 271-278. R. 1787, pp. 112, 113, 114.

Cross References

Cross references. Accounts of administrators, see §§ 1055-1068 of this title.

§ 2794. Citation of person suspected of embezzling or secreting.

If a guardian, ward, creditor or heir apparent of a ward files a motion complaining to the Probate Division of the Superior Court that a person is suspected of having concealed, embezzled, or conveyed away money, goods, or chattels of the ward, or that such person has possession or knowledge of deeds or other writings that would furnish evidence of a right, title, interest, or claim of the ward in or to real or personal estate, the court may cite that person to appear before it to be examined on oath upon the matter.

Amended 1979, No. 76 , § 7; 1985, No. 144 (Adj. Sess.), § 132; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3332. P.L. § 3242. G.L. § 3673. P.S. § 3180. V.S. § 2771. R.L. § 2455. G.S. 72, § 24. R.S. 65, § 25. 1821, p. 54. R. 1797, p. 272, § 15. R. 1797, p. 377, § 2. R. 1787, p. 114.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979. Inserted "ward" preceding "creditor".

Cross References

Cross references. Embezzlement by guardian, see § 2535 of Title 13.

Recovery of decedent's property embezzled or fraudulently conveyed, see § 1551 et seq. of this title.

ANNOTATIONS

1. Discovery.

Probate court had ample power to compel discovery in respect to trusts generally, pursuant to section 2318 of this title. Mitchell v. Blanchard, 72 Vt. 85, 47 A. 98 (1899).

§ 2795. Commitment for disobedience; examination.

If the person so cited does not appear and submit to examination, or answer lawful interrogatories, the Probate Division of the Superior Court may issue a warrant committing the person to the custody of the Commissioner of Corrections until compliance is given. Interrogatories shall be in writing, signed by the party examined, and filed in the court.

Amended 1985, No. 144 (Adj. Sess.), § 133; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3333. P.L. § 3243. G.L. § 3674. P.S. § 3181. V.S. § 2772. R.L. § 2456. G.S. 72, § 24. R.S. 65, § 25. 1821, p. 54.

Revision note. In the first sentence, substituted "commissioner of corrections" for "county jail" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Discovery generally, see Rule 26, Vermont Rules of Probate Procedure.

§ 2796. Citation; costs.

Such citation shall issue and costs be taxed, as provided in case of similar citations in the settlement of estates.

History

Source. V.S. 1947, § 3334. P.L. § 3244. G.L. § 3675. P.S. § 3182. V.S. § 2773. R.L. § 2457. 1865, No. 20 .

§ 2797. Guardian to manage estate and maintain ward.

A guardian shall manage the estate of his or her ward frugally and without waste and in a manner most beneficial to the ward and out of the estate of his or her ward shall provide for the maintenance of the ward and his or her family, according to his or her condition and property.

History

Source. V.S. 1947, § 3335. P.L. § 3245. G.L. § 3676. P.S. § 3183. V.S. § 2774. R.L. § 2458. G.S. 72, § 25. R.S. 65, § 26. 1821, p. 71. R. 1797, p. 271, § 14. R. 1797, p. 276, § 19. R. 1797, p. 377, § 3. R. 1787, pp. 112-114.

§ 2798. Guardian may sell personalty and support ward.

When it is necessary or for the interest of his or her ward, the guardian shall sell his or her personal estate. Out of the proceeds, and the income of his or her real estate, if sufficient, such guardian shall pay the necessary expenses of the maintenance and education of his or her ward.

History

Source. V.S. 1947, § 3336. P.L. § 3246. G.L. § 3677. P.S. § 3184. V.S. § 2775. R.L. § 2459. G.S. 72, § 26. R.S. 65, § 27. 1821, p. 71. R. 1797, p. 377, § 3.

ANNOTATIONS

Analysis

1. Generally.

Guardian of minor may sell personalty to maintain ward. Administrator of Pratt v. Baker, 56 Vt. 70 (1884).

2. License.

Guardian is not required to obtain a license to sell personal property from probate court unless proceeds of such sale are to be invested in real estate. In re Estate of Collette, 122 Vt. 231, 167 A.2d 361 (1961).

§ 2799. Repealed. 1979, No. 76, § 20.

History

Former § 2799, relating to powers of guardians, was derived from V.S. 1947, § 3337; 1939, No. 58 , § 1; P.L. § 3247; G.L. § 3678; P.S. § 3185; V.S. § 2776; R.L. § 2460; G.S. 72, § 28; R.S. 65, § 30; 1821, p. 71; R. 1797, p. 276, § 19; R. 1797, p. 377, § 3.

§ 2800. Disputed claim may be referred.

When there is a disputed claim between a guardian, on behalf of the ward, and any other person, with the consent of the parties in writing the Probate Division of the Superior Court may refer it to a master as provided by the Rules of Probate Procedure.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1985, No. 144 (Adj. Sess.), § 134; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3338. P.L. § 3248. G.L. § 3679. P.S. § 3186. V.S. § 2777. R.L. § 2461. G.S. 48, § 39. R.S. 44, § 37.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Substituted "superior court" for "county court" preceding "on appeal" in the first sentence.

Cross References

Cross references. Masters, see Rule 53, Vermont Rules of Probate Procedure.

§ 2801. Guardian may discharge mortgage; consent to sale of realty.

On payment to him of the sum due on a real estate mortgage, a guardian may give an acquittance or release of the claim of his ward as mortgagee or assignee under such mortgage, and may give the consent of his ward to the sale of real estate when such consent is required by law.

History

Source. V.S. 1947, § 3339. P.L. § 3249. G.L. § 3680. P.S. § 3187. V.S. § 2778. R.L. § 2462. G.S. 72, § 29. R.S. 65, § 31.

§ 2802. Partition of estate of which ward has an undivided interest.

When a ward is joint tenant or tenant in common with others, the ward's guardian may agree with the other joint tenants or tenants in common, to make partition of the lands so held. When that agreement is made in writing and filed with the Probate Division of the Superior Court, the Probate Division of the Superior Court may make the partition. A certified copy thereof shall be recorded in the office where by law a deed of those lands is required to be recorded, and the partition shall be binding on the ward, the ward's heirs and assigns and on the parties to the agreement.

Amended 1971, No. 179 (Adj. Sess.), § 9; 1985, No. 144 (Adj. Sess.), § 135; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3340. P.L. § 3250. G.L. § 3681. P.S. § 3188. V.S. § 2779. R.L. § 2463. G.S. 72, § 30. R.S. 65, § 32.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court"' for "probate court" twice.

Amendments--1985 (Adj. Sess.). Rewrote the second sentence and made other minor changes in phraseology throughout the section.

Amendments--1971 (Adj. Sess.). Substituted "filed and docketed" for "and recorded" following "returned to" in the second sentence.

Cross References

Cross references. Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized places, see § 403 of Title 27.

§ 2803. Court may order personalty sold and proceeds invested in real estate.

  1. On motion of a guardian, a ward, or relative of a ward, or of a person interested in a ward's estate, by order, the Probate Division of the Superior Court may authorize or require the guardian to sell and transfer stock or other personal estate of the ward, collect demands, and invest in real estate the proceeds and the monies in the hands of the guardian, if the court deems it beneficial to the ward.
  2. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

    Amended 1979, No. 76 , § 8; 1985, No. 144 (Adj. Sess.), § 136; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, §§ 3341, 3342. P.L. §§ 3251, 3252. G.L. §§ 3682, 3683. P.S. §§ 3189, 3190. V.S. §§ 2780, 2781. R.L. §§ 2464, 2465. G.S. 72, §§ 31, 32. R.S. 65, §§ 42, 43.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Subsec. (a): Substituted "motion" for "the application" preceding "of a guardian, a ward" and made other minor stylistic changes.

Subsec. (b): Amended generally.

Amendments--1979. Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

Validity of sales made by guardians under void or voidable appointments, see § 2963 of this title.

§ 2804. Court may order estate paid to guardian in other state.

When a minor or other person having a guardian appointed by a Probate Division of the Superior Court in this State, has a guardian in another state or country, and it appears to the Probate Division of the Superior Court having jurisdiction in this State that it is necessary and would be beneficial to the interests of such ward to use a part or all of his or her estate in this State to protect his or her interests and property in the other state or country, such court may order the guardian in this State to pay over to the guardian in the other state or country such part of the ward's estate in this State as may be necessary to protect the ward's interests in such other state or country. Such an order shall not be made unless it appears to the Probate Division of the Superior Court that the guardian in such other state or country has by bond or otherwise given satisfactory security for the faithful execution of his or her trust.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3343. P.L. § 3253. G.L. § 3684. P.S. § 3191. V.S. § 2782. R.L. § 2466. 1880, No. 59 .

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court" three times.

Subchapter 5. Payment of Debts of Ward

§ 2841. Limiting time for payment of debts.

When a ward owes debts at the time of the appointment of his or her guardian, the Probate Division of the Superior Court may allow the guardian a reasonable time, not exceeding one year, to dispose of the estate and collect the demands for the ward and pay such debts. In the discretion of the court, such time may be extended so as not to exceed two years in the whole.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3344. P.L. § 3254. G.L. § 3685. P.S. § 3192. V.S. § 2783. R.L. § 2467. G.S. 72, § 41. R.S. 65, § 35.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

§ 2842. Realty to be taken when personalty exhausted.

The personal estate of the ward shall be first used for the payment of his or her debts. If the personal estate and the income of his or her real estate are not sufficient, such expenses and debts shall be paid out of the real estate, when sold, according to law.

History

Source. V.S. 1947, § 3345. P.L. § 3255. G.L. § 3686. P.S. § 3193. V.S. § 2784. R.L. § 2468. G.S. 72, § 26. R.S. 65, § 27. 1821, p. 71. R. 1797, p. 272, § 15. R. 1797, p. 276, § 19. R. 1797, p. 377, § 3. R. 1787, p. 114.

§ 2843. Claims, time for presenting limited; when barred.

On motion of the guardian, the Probate Division of the Superior Court may make an order requiring creditors of a ward to present their claims to the guardian for payment within a time to be limited by the court, which time shall not be more than 18 months nor less than six months. Notice shall be given as provided by the Rules of Probate Procedure. Claims not presented within the time limited shall be barred as against the guardian, unless after notice of the claims, there is estate in the guardian's hands sufficient to pay all the debts against the ward.

Amended 1985, No. 144 (Adj. Sess.), § 137; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3346. P.L. § 3256. G.L. § 3687. P.S. § 3194. V.S. § 2785. R.L. § 2469. G.S. 72, § 42. R.S. 65, § 36.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Substituted "motion" for "the application" following "on" and "a" for "his" following "creditors of" in the first sentence, rewrote the second sentence, and substituted "the" for "such" following "notice of" and "the guardian's" for "his" preceding "hands" in the third sentence.

Cross References

Cross references. Procedure for creditors' claims against decedents' estates generally, see Rule 64, Vermont Rules of Probate Procedure.

§§ 2844, 2845. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 2844, relating to referral of claims to commissioners, was derived from V.S. 1947, § 3347; P.L. § 3257; G.L. § 3688; 1910, No. 103 ; P.S. § 3195; V.S. § 2786; R.L. § 2470; G.S. 72, § 43; R.S. 65, § 37.

Former § 2845, relating to removal of commissioners, was derived from V.S. 1947, § 3348; P.L. § 3258; G.L. § 3689; P.S. § 3196; V.S. § 2787; R.L. § 2471; 1865, No. 18 .

§ 2846. Court may order dividend.

At the expiration of the time limited for creditors to present their claims, if it appears that the ward has not estate sufficient to pay his or her debts, the Probate Division of the Superior Court shall order the effects in the hands of the guardian for that purpose to be divided among the creditors in proportion to their claims.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3349. P.L. § 3259. G.L. § 3690. P.S. § 3197. V.S. § 2788. R.L. § 2472. G.S. 72, § 44. R.S. 65, § 38.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

§ 2847. Allowance to guardian.

Before making a dividend, the court may allow to the guardian, out of the estate of the ward, a reasonable sum for his expenses in the management and settlement of the property for expenses in taking care of the person and family of the ward during the settlement, and for wearing apparel of the ward and his or her family.

History

Source. V.S. 1947, § 3350. P.L. § 3260. G.L. § 3691. P.S. § 3198. V.S. § 2789. R.L. § 2473. G.S. 72, § 45. R.S. 65, § 39.

§ 2848. After dividend, claims barred as to guardian; exception.

After the dividend is made, the creditors shall have no further claim against the guardian on their demands, except where estate of the ward afterwards comes to his or her possession or knowledge. In such case, the court may make another dividend among the creditors.

History

Source. V.S. 1947, § 3351. P.L. § 3261. G.L. § 3692. P.S. § 3199. V.S. § 2790. R.L. § 2474. G.S. 72, § 46. R.S. 65, § 40.

§ 2849. Claims not barred.

Sections 2841-2848 of this title shall not bar the claims of creditors against the ward after he or she is discharged from guardianship.

History

Source. V.S. 1947, § 3352. P.L. § 3262. G.L. § 3693. P.S. § 3200. V.S. § 2791. R.L. § 2475. G.S. 72, § 47. R.S. 65, § 41.

Reference in text. Sections 2844 and 2845 of this title, referred to in this section, were repealed pursuant to 1985, No. 144 (Adj. Sess.), § 163.

Revision note. Substituted "sections 2841-2848 of this title" for "the preceding sections" for purposes of clarity.

§ 2850. Ward not to be sued; action commenced before appointment may proceed.

A writ or execution shall not be issued against a ward for a debt while he or she is under guardianship; but actions commenced against a person before the appointment of his guardian may be prosecuted to final judgment. A creditor may have execution against the real or personal estate of the ward on which he or she had a previous lien by attachment, and such real or personal estate may be disposed of according to law to satisfy such execution.

History

Source. V.S. 1947, § 3353. P.L. § 3263. G.L. § 3694. P.S. § 3201. V.S. § 2792. R.L. § 2476. G.S. 72, § 41. R.S. 65, § 35.

ANNOTATIONS

Analysis

1. Construction with other laws.

Provision that writ or execution shall not be issued against ward for debt while he is under guardianship has no application to petition by wife against husband under guardianship for support, under section 291 of Title 15, since such petition is not writ for debt within meaning of this section. King v. King, 102 Vt. 335, 148 A. 286 (1930).

2. Jurisdiction.

Where a writ was issued, and judgment rendered by a justice of the peace, against plaintiff while he was insane and under guardianship, audita querela would lie to set aside such judgment, by force of statute justice had no power to issue a writ against ward, all proceedings were coram non judice, and consent could not confer jurisdiction in such a case. Miller v. Potter, 54 Vt. 267 (1881).

Subchapter 6. Sale of Real Estate

§ 2881. Real estate; when may be sold.

The Probate Division of the Superior Court may authorize guardians to sell a part or all of the lands of their wards or the interest of such wards in real estate, vested or contingent, in the following cases:

  1. when the personal estate of a ward is insufficient to pay the expenses of maintaining the ward and his or her family, or of educating a minor ward as his or her circumstances require;
  2. when the personal estate of a ward is insufficient to pay his or her debts contracted before or after the appointment of his or her guardian;
  3. when it appears to the court conducive to the interest of the ward to sell the real estate, or an interest vested or contingent in the real estate and put the proceeds at interest or invest it in stocks or in real estate.

    Amended 1979, No. 76 , § 9; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3354. P.L. § 3264. G.L. § 3695. P.S. § 3202. V.S. § 2793. R.L. § 2477. 1874, No. 69 , § 3. 1866, No. 34 , § 1. G.S. 72, § 33. R.S. 65, § 44. 1835, No. 6 , § 1. 1827, No. 11 , § 2. 1825, No. 8 , § 1. 1804, Jan., p. 65. R. 1797, p. 271, § 14. R. 1797, p. 377, § 3. R. 1787, pp. 112, 114.

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court".

Amendments--1979. Deleted the second undesignated paragraph.

Cross References

Cross references. Mortgage and lease of real property by guardian, see § 2201 et seq. of this title.

ANNOTATIONS

1. Construction.

Plain language of the licensing statutes does not distinguish between guardians in voluntary or involuntary guardianships. Instead, the statutes refer generally to "guardians" or "fiduciaries," which include guardians. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

§ 2882. Regulations under which license granted.

As provided in section 2881 of this title, the order of a Probate Division of the Superior Court licensing the sale of lands of wards shall be made under the following regulations:

  1. On motion of the guardian for license to sell, the probate division of the superior court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.
  2. At the hearing, the guardian shall produce evidence of the value of the estate to be sold, the interest of the ward therein and of the necessity of sale.
  3. Before license is granted and if the court requires, the guardian shall give a bond with sufficient sureties, in a sum double the value of the land to be sold, conditioned to account for the proceeds of the sale, according to law, and shall also be sworn to sell the estate as judged will be most beneficial to the ward.  A certificate of the oath made by the authority administering it shall be returned to the Probate Division of the Superior Court before the license issues.
  4. If the foregoing requisites are complied with, the court may order a public or private sale of the lands of the ward or an interest in the same, or such part thereof as the court deems necessary, and shall furnish the guardian with a certified copy of its order.
  5. If the court directs a public sale, the order shall designate the mode of giving notice of the time and place thereof, and the sale shall be in the town where the lands lie.
  6. The order of sale shall state that the requisites mentioned in subdivisions (1)-(3) of this section have been complied with. A copy thereof shall be recorded, previous to the sale, in the office where a deed of such lands is required to be recorded.

    Amended 1985, No. 144 (Adj. Sess.), § 138; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3355. P.L. § 3265. G.L. § 3696. 1917, No. 254 , § 3647. P.S. § 3203. V.S. § 2794. R.L. § 2478. G.S. 72, § 34. 1846, No. 36 , § 2. 1841, No. 13 . R.S. 65, § 45. 1835, No. 6 , § 2. 1825, No. 8 . 1804, Jan., p. 65. R. 1797, p. 377, § 3.

Revision note. In subdiv. (6), substituted "subdivisions (1)-(3) of this section" for "the first three subdivisions of this section" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in the introductory paragraph and in subdivs. (1) and (3).

Amendments--1985 (Adj. Sess.). Inserted "a probate" preceding "court" in the introductory paragraph, rewrote subdiv. (1), deleted "such" preceding "sale" in subdiv. (2), substituted "to" for "that he will" following "conditioned" and "judged" for "in his judgment" following "estate as" in subdiv. (3).

Cross References

Cross references. Licensing of conveyance by guardian of lands held by ward as trustee for another, see § 2890 of this title.

Licensing of sale of lands pursuant to contract of ward, see § 2887 of this title.

Licensing of sale of lands where guardian or ward reside outside state, see § 2886 of this title.

Notice of, see Rule 4, Vermont Rules of Probate Procedure.

Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized places, see § 403 of Title 27.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

Service of motion for license to sell real estate, see Rule 5.1, Vermont Rules of Probate Procedure.

Validity of sales made by guardians under void or voidable appointments, see § 2963 of this title.

§ 2883. Term of license.

Such license shall not continue in force more than two years.

History

Source. V.S. 1947, § 3356. P.L. § 3266. G.L. § 3697. P.S. § 3204. V.S. § 2795. R.L. § 2480. 1872, No. 42 . G.S. 72, § 36. R.S. 65, § 62.

§ 2884. Deed, effect of.

A deed executed by a guardian of the lands of his or her ward under such order of sale shall be valid and shall convey the interest of the ward in the lands, whether vested or contingent.

History

Source. V.S. 1947, § 3357. P.L. § 3267. G.L. § 3698. P.S. § 3205. V.S. § 2796. R.L. § 2479. 1866, No. 34 . G.S. 72, § 35. R.S. 65, § 46.

§ 2885. Guardian to report sale.

Within three months after a sale of real estate of his or her ward under a license, a guardian shall make report of his or her proceedings, setting forth the time and manner of sale, the person to whom and the price for which it was sold and a description of each parcel sold. Such report shall be filed and docketed in the Probate Division, but neglect to make the report shall not affect the title to the lands sold.

Amended 1971, No. 179 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3358. P.L. § 3268. G.L. § 3699. P.S. § 3206. V.S. § 2797. R.L. § 2481. G.S. 72, § 37. R.S. 65, § 63.

Amendments--1971 (Adj. Sess.). Substituted "filed and docketed" for "recorded" following "report shall be" in the second sentence.

§ 2886. License when guardian or ward resides out of state.

On motion to the Probate Division of the Superior Court for an order to sell the real estate of a ward, when the sale is necessary or conducive to the interests of that person, a license may be granted as provided in this chapter, although the guardian making the motion, or the ward, or both, reside out of the State.

Amended 1979, No. 76 , § 10; 1985, No. 144 (Adj. Sess.), § 139; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3359. P.L. § 3269. G.L. § 3700. P.S. § 3207. R. 1906, § 3086. V.S. § 2798. R.L. § 2482. G.S. 72, § 38. 1846, No. 36 , § 1.

Revision note. Substituted "the motion" for "application" following "making" to conform language to text of remainder of section, as amended.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" preceding "to the probate", deleted "situated in such probate district" preceding "when", and made other minor stylistic changes.

Amendments--1979. Substituted "ward" for "minor, insane person or a person mentally incapable of taking care of himself or his property" preceding "situated" and deleted "for the support" preceding "or conducive".

Cross References

Cross references. Removal of property from state by nonresident guardian, see §§ 2923 and 2924 of this title.

Validity of sales made by guardians under void or voidable appointments, see § 2963 of this title.

§ 2887. Conveyance of land that ward was under contract to convey.

When a person, while not under guardianship, was under contract binding in law or equity to deed lands, on motion, the Probate Division of the Superior Court may grant license to the guardian of that person to convey those lands according to the contract. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

Amended 1979, No. 76 , § 11; 1985, No. 144 (Adj. Sess.), § 140; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3360. P.L. § 3270. G.L. § 3701. P.S. § 3208. R. 1906, § 3087. V.S. § 2799. R.L. § 2483. G.S. 72, § 39. 1846, No. 37 , §§ 1, 2.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979. Section amended generally.

Cross References

Cross references. Licensing of conveyance by guardian of lands held by ward as trustee for another, see § 2890 of this title.

Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

1. Confirming deed of ward.

Guardian cannot confirm a deed made by his ward except by obtaining license, and executing conveyance himself. Doty v. Hubbard, 55 Vt. 278 (1882).

§ 2888. License not to be granted to creditors' injury.

The license shall not be granted if it appears to the court that the conveyance would so reduce the assets in the hands of the guardian as to lessen the amount that creditors would receive from the estate of the ward.

History

Source. V.S. 1947, § 3361. P.L. § 3271. G.L. § 3702. P.S. § 3209. V.S. § 2800. R.L. § 2484. G.S. 72, § 39. 1846, No. 37 , § 2.

§ 2889. If guardian grantee, judge to convey; deed, effect of.

If the contract is to convey lands to the guardian, the judge of the Probate Division shall execute the deed. Such deed, or the deed of the guardian, as the case may be, shall be as effectual to convey the lands as if executed by the ward when not under guardianship.

Amended 1979, No. 76 , § 12.

History

Source. V.S. 1947, § 3362. P.L. § 3272. G.L. § 3703. P.S. § 3210. R. 1906, § 3089. V.S. § 2801. R.L. § 2485. G.S. 72, § 39. 1846, No. 37 , § 1.

Amendments--1979. Substituted "ward when not under guardianship" for "insane person when sane or by a person mentally incapable of taking care of himself or his property when mentally sound" following "executed by the" in the second sentence.

§ 2890. Lands held in trust to be conveyed to beneficiary.

When a person, while not under guardianship, held lands in trust for another person, or where lands have been set off on execution to a ward on a debt in the name of the ward but being the debt of some other person, and not belonging to the ward, upon motion, the Probate Division of the Superior Court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. The court may grant license to the guardian to deed the lands to the person for whose benefit they are held. The court may decree the execution of the trust, whether created by deed or by law.

Amended 1979, No. 76 , § 13; 1985, No. 144 (Adj. Sess.), § 141; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3363. P.L. § 3273. G.L. § 3704. P.S. § 3211. R. 1906, § 3090. V.S. § 2802. R.L. § 2486. G.S. 72, § 40. 1846, No. 37 , § 3.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1979. Rewrote the first sentence.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 2891. When guardian dies or is removed pending sale, new license.

If the guardian dies, resigns, or is removed before the completion of a sale of real estate under a license, within two years from the time of granting the same, the court may issue a new license to his successor without further notice or hearing.

History

Source. V.S. 1947, § 3364. P.L. § 3274. G.L. § 3705. P.S. § 3212. V.S. § 2803. R.L. § 2487. 1872, No. 39 .

Subchapter 7. Settlement of Accounts

§ 2921. Accounts, time.

Within one year after his or her appointment and annually thereafter and at such other times as the Probate Division of the Superior Court directs, a guardian whose ward has real or personal estate shall render and settle with the court an account of the proceeds and expenditure of his or her ward's estate. At the expiration of his or her trust, such guardian shall render and settle with the Probate Division of the Superior Court his or her account of the property of his or her ward, including the income and proceeds of the sale of his or her personal and real estate, and pay over and deliver to persons entitled to the same the estate and effects remaining in his or her hands, or due from him or her on such settlements.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3365. P.L. § 3275. 1923, No. 53 , § 5. 1919, No. 88 , § 5. G.L. § 3706. P.S. § 3213. V.S. § 2804. 1888, No. 85 . R.L. § 2488. G.S. 72, § 51. R.S. 65, § 28. 1821, p. 71. 1810, p. 165. R. 1797, p. 258, § 96. R. 1797, p. 377, § 3. R. 1797, p. 379, § 5. R. 1787, pp. 59, 112.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

ANNOTATIONS

Analysis

1. Deceased guardian.

Proper and legitimate mode of procedure in settlement of account of a deceased guardian in probate court was to cite in representative of deceased guardian to attend to adjustment of that account. Waterman v. Wright, 36 Vt. 164 (1863).

2. Wages of ward.

Wages earned by a ward while in employ of his guardian were treated as money assets held by guardian in trust or in a fiduciary capacity, to be accounted for like other assets. Haskell v. Jewell, 59 Vt. 91, 7 A. 545 (1886).

§ 2922. By guardian of nonresident ward.

When a minor or other person has a guardian in this State, but resides in another state or country, and it is shown to the court that such minor or other person has a guardian in the state or country where he or she resides, and that such guardian, by bond or otherwise, has given satisfactory security for the faithful performance of his or her trust, the court may order the first named guardian to settle his or her account and pay over the estate of his or her ward to the nonresident guardian, if it appears to the court that such transfer will be for the interests of the ward.

History

Source. V.S. 1947, § 3366. P.L. § 3276. G.L. § 3707. P.S. § 3214. V.S. § 2805. 1884, No. 55 . R.L. § 2489. 1872, No. 43 .

§ 2923. Property may be ordered into hands of nonresident guardian; proceedings.

  1. When a guardian and ward are nonresidents and the ward is entitled to property in this State, the guardian may petition the Probate Division of the Superior Court for removal of the property.  The petition shall set forth that the removal of the property of the ward will not conflict with the terms and limitations of the right by which the ward owns the same nor be prejudicial to the ward's interests therein.  The petition shall be accompanied by a complete transcript from the records of a court of competent jurisdiction of the state in which the guardian and ward reside, duly exemplified or authenticated, showing appointment as guardian of the ward and that, by bond or otherwise, satisfactory security has been given for the faithful execution of the trust.
  2. The transcript shall be filed in the court, and the guardian shall thereupon be entitled to receive letters or a certificate of guardianship of the estate of the ward from the court, which shall authorize the guardian to demand, sue for, and recover property and remove the same to the other state.
  3. The court may order a resident guardian, executor, or administrator, having any of the estate of the ward, to deliver the same to the nonresident guardian, provided that all debts in favor of residents or citizens of this State, known to exist against the estate, whether due or to become due, have first been paid or tendered.

    Amended 1971, No. 179 (Adj. Sess.), § 11; 1985, No. 144 (Adj. Sess.), § 142; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3367. P.L. § 3277. G.L. § 3708. 1917, No. 92 . P.S. § 3215. V.S. § 2806. 1894, No. 61 , § 1.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted "docketed and" preceding "filed in" and substituted "the" for "such probate" thereafter and made other minor stylistic changes.

Amendments--1971 (Adj. Sess.). Subsec. (b): Substituted "docketed and filed" for "entered of record" following "transcript shall be".

Cross References

Cross references. Licensing of sale of lands of nonresidents, see § 2886 of this title.

§ 2924. Same; exception.

Section 2923 of this title shall not apply if the parent of the ward, being a resident of this State at the time of death, has appointed a guardian for the ward by last will and testament and the guardian resides in this State at the time the petition provided for in section 2923 is made, unless the consent of the testamentary guardian to the removal of the property is satisfactorily shown to the Probate Division of the Superior Court to which the petition is made.

Amended 1985, No. 144 (Adj. Sess.), § 143; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3368. P.L. § 3278. G.L. § 3709. P.S. § 3216. V.S. § 2807. 1894, No. 61 , § 2.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "death", substituted "petition" for "application" in two places and "consent" for "assent" following "unless the", inserted "probate" preceding "court", and made other minor stylistic changes throughout the section.

§ 2925. Guardian to swear to correctness of account.

The Probate Division of the Superior Court shall examine every guardian upon oath as to the truth and correctness of an account before the same is allowed by the court. However, in its discretion, the court may dispense with such examination when objection is not made to the allowance of the account.

Amended 1985, No. 144 (Adj. Sess.), § 144; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3369. P.L. § 3279. G.L. § 3710. P.S. § 3217. V.S. § 2808. R.L. § 2490. G.S. 54, § 10. 1856, No. 13 . 1846, No. 15 .

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Substituted "an" for "his" preceding "account" in the first sentence and deleted "and its truth and correctness are satisfactorily established by other competent evidence" following "account" at the end of the second sentence.

Cross References

Cross references. Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

Reopening of estate for reexamination of guardian's account, see § 2927 of this title.

ANNOTATIONS

1. Trustee as witness.

In settlement of a trustee's account trustee himself is a competent witness to all matters touching the management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 2926. Surety may intervene as party; rights of surety.

Upon the settlement of a guardian's account, any person interested as surety in respect to the account may intervene as a party to the accounting with the same rights as the surety of an administrator in like cases.

Amended 1985, No. 144 (Adj. Sess.), § 145.

History

Source. V.S. 1947, § 3370. P.L. § 3280. G.L. § 3711. P.S. § 3218. V.S. § 2809. R.L. § 2491. 1876, No. 84 .

Revision note. In the section heading, substituted "may intervene" for "to be admitted" for purposes of conformity with the text of the section, as amended.

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "rights" in the section heading and added "of surety" thereafter and substituted "intervene" for "be admitted" preceding "as a party" in the text of the section.

Cross References

Cross references. Intervention, see Rule 24, Vermont Rules of Probate Procedure.

§ 2927. Remedy, after guardian's discharge, reexamination of accounts.

After the trust of a guardian is terminated, if the ward or the ward's legal representatives are dissatisfied with the account as allowed by the Probate Division of the Superior Court during the continuance of the trust, within two years, and if the ward or the legal representatives do not at the time of the termination of the trust reside in this State, within four years thereafter, they may file a motion to reopen the estate for a reexamination of the account. After notice as provided by the Rules of Probate Procedure, the court shall reexamine accounts previously allowed. A party may appeal from the decision of the Probate Division to the Civil Division of the Superior Court. The final allowance of accounts in these proceedings shall be conclusive between the parties.

Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1985, No. 144 (Adj. Sess.), § 146; 2009, No. 154 (Adj. Sess.), § 124, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3371. P.L. § 3281. G.L. § 3712. P.S. § 3219. V.S. § 2810. R.L. § 2492. G.S. 72, § 52. R.S. 65, § 29. 1821, p. 71. R. 1797, p. 259, § 97. R. 1797, p. 273, § 15.

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court" in the first sentence, and substituted "probate division to the civil division of the superior" for "probate court to the superior" in the third sentence.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Substituted "superior court" for "county court" at the end of the third sentence.

Cross References

Cross references. Allowance of guardians' accounts generally, see § 2925 of this title.

Closing and reopening of probate proceedings, see Rule 60.1, Vermont Rules of Probate Procedure.

Notice, see Rule 4, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Purpose.

This section was not intended to create an exclusive remedy, or to operate as a limitation upon all remedy, if time fixed was suffered to expire without having taken advantage of the provisions of that statute. Scoville V. Brock, 79 Vt. 449, 65 A. 577 (1907).

2. Conclusiveness of final settlement.

Final settlement of a guardian's account, made on notice afterward became of age, was conclusive as to all matters which appeared from record to have been adjudicated, except in proceedings brought directly to correct or annul it. Scoville v. Brock, 75 Vt. 243, 54 A. 177 (1903).

3. Time limitation.

As against orator, who sought to set aside allowance of final account of his former guardian for fraud, time did not necessarily begin to run when confidential relation ended, but only when influence of that relation ceased to operate upon him so he could act independently of it. Scoville v. Brock, 76 Vt. 385, 57 A. 967 (1904).

§ 2928. Death of ward.

Whenever a person dies while under guardianship, the guardian may pay so much of the burial expenses as the guardian is able from the funds in his or her hands and make final account to the Probate Division of the Superior Court.

Amended 1985, No. 144 (Adj. Sess.), § 147; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3372. P.L. § 3282. 1923, No. 58 , § 1.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Substituted "the guardian" for "he" following "as", inserted "or her" preceding "hands and make final" and substituted "account to" for "settlement with" thereafter.

Cross References

Cross references. Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

Subchapter 8. Void or Voidable Appointment

§ 2961. Previous acts confirmed and compensation allowed, on being lawfully appointed.

If a person who has acted as guardian under an appointment void or voidable by reason of the incapacity of the judge or register of probate to make such appointment, shall afterwards be lawfully appointed guardian of the ward named in such void or voidable appointment, the Probate Division of the Superior Court making such lawful appointment may ratify and confirm the acts, approve and allow the accounts, and allow full compensation for the services of such person while acting under such previous appointment, if it appears that such person has acted in good faith and executed the supposed trust as required by law.

Added 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

Cross References

Cross references. Validity of sales of real estate by guardian under void or voidable appointments, see § 2963 of this title.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

§ 2962. Good faith.

A person who has acted in good faith as guardian under an appointment void or voidable may render an account as guardian to the court in which the proceeding is pending. If it appears that the person accepted and acted under appointment in good faith and has executed the supposed trust as required by law, the court shall confirm the acts, allow the accounts, and allow full compensation for the services of the person, and may allow and confirm all accounts of the person, which have been previously examined and allowed if the accounts are found correct and just.

Amended 1985, No. 144 (Adj. Sess.), § 148.

History

Source. V.S. 1947, § 3374. P.L. § 3284. G.L. § 3714. P.S. § 3221. V.S. § 2812. R.L. § 2494. 1880, No. 60 , § 2.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Validity of sales of real estate by guardians under void or voidable appointments, see § 2963 of this title.

§ 2963. Conveyances valid.

When the acts of a guardian under a void or voidable appointment are confirmed, as provided in sections 2961 and 2962 of this title, all sales of the real estate of the supposed ward previously made under a license issued by the Probate Division of the Superior Court shall be valid and of full force from the date of sale.

Amended 1985, No. 144 (Adj. Sess.), § 149; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3375. P.L. § 3285. G.L. § 3715. P.S. § 3222. V.S. § 2813. R.L. § 2495. 1880, No. 60 , § 3.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Inserted "previously" following "ward", substituted "the probate court" for "such judge or register incapacitated to act in the premises" preceding "shall" and made other minor stylistic changes.

§ 2964. Bond.

A bond given to a Probate Division of the Superior Court by a guardian under a void or voidable appointment shall be valid. If he or she is appointed guardian, as provided in section 2961 of this title, a new bond need not be required, if, in the opinion of the Probate Division of the Superior Court, the first bond given is sufficient.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3376. P.L. § 3286. G.L. § 3716. P.S. § 3223. V.S. § 2814. R.L. § 2496. 1880, No. 60 , § 4.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Subchapter 9. Termination of Guardianship

§ 3001. Removal; resignation; marriage of guardian; vacancies.

If a guardian for a minor neglects to render an account as required by the Vermont Rules of Probate Procedure or to appear, or to perform an order or decree of the Probate Division of the Superior Court, or absconds or becomes mentally disabled or otherwise incapable or unsuitable to discharge the trust, the Probate Division of the Superior Court may remove or may allow the guardian to resign. Marriage shall not extinguish a guardian's authority. When a guardianship becomes vacant, the court may make a new appointment.

Amended 1979, No. 76 , § 14; 1985, No. 144 (Adj. Sess.), § 150; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3377. P.L. § 3287. 1923, No. 53 , § 7. G.L. § 3717. P.S. § 3224. V.S. § 2815. R.L. § 2497. G.S. 72, §§ 53, 54. 1861, No. 29 . R.S. 65, §§ 19, 20. 1821, pp. 43, 44. 1816, p. 140.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Amendments--1979. Substituted "marriage of guardian" for "married woman" preceding "vacancies" in the section heading, "mentally disabled" for "insane" following "becomes" in the first sentence and rewrote the second sentence.

Cross References

Cross references. Appointment of special fiduciary in place of guardian, see § 3011 of this title.

Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

Supervision of fiduciaries generally, see Rule 67, Vermont Rules of Probate Procedure.

§ 3002. Minor ward's marriage; exception.

The marriage of a minor under guardianship shall discharge the guardian from all right to custody and education, but not from a right to property of the ward.

Amended 1985, No. 144 (Adj. Sess.), § 151; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source. V.S. 1947, § 3378. P.L. § 3288. G.L. § 3718. P.S. § 3225. 1896, No. 53 , § 1. V.S. § 2816. R.L. § 2498. G.S. 72, § 55. R.S. 65, § 21.

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 3003. Parent may move for guardian's removal; notice.

When, by reason of the incapacity or unsuitableness of a parent to have the custody and education of a minor child, another person has been appointed guardian of the minor, the parent may, at any time, file a motion for the removal of the guardian. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

Amended 1985, No. 144 (Adj. Sess.), § 152; 2013, No. 96 (Adj. Sess.), § 64.

History

Source. V.S. 1947, § 3379. P.L. § 3289. G.L. § 3719. P.S. § 3226. V.S. § 2817. R.L. § 2499. 1870, No. 32 , §§ 1, 2.

Revision note. In the section heading, substituted "move" for "apply" for purposes of conformity with the text of the section, as amended.

Amendments--2013 (Adj. Sess.). Substituted "incapacity" for "incompetency" following "reason of the".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Cited. Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002).

§ 3004. Court may revoke.

Upon hearing, if the Probate Division of the Superior Court is of the opinion that the parent is then a proper person to have the care and custody of the child, it shall revoke the guardianship and order the guardian to deliver the custody of the child to the parent within a time it judges reasonable.

Amended 1985, No. 144 (Adj. Sess.), § 153; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3380. P.L. § 3290. G.L. § 3720. P.S. § 3227. V.S. § 2818. R.L. § 2500. 1870, No. 32 , § 3.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Deleted "the application" following "hearing", inserted "probate" preceding "court", substituted "a" for "such" preceding "time" and deleted "as" thereafter.

ANNOTATIONS

Cited. Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002).

§ 3005. Guardian refusing to give up ward, committed.

If the guardian does not obey the order, the court may issue a warrant directed to any sheriff or constable requiring him or her to apprehend and commit the guardian to the Commissioner of Corrections until he or she performs the order or is discharged by law.

History

Source. V.S. 1947, § 3381. P.L. § 3291. G.L. § 3721. P.S. § 3228. V.S. § 2819. R.L. § 2501. 1870, No. 32 , § 4.

Revision note. Substituted "commit the guardian to the commissioner of corrections" for "imprison the guardian in the common jail of the county" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

§ 3006. Repealed. 1979, No. 76, § 20.

History

Former § 3006, relating to removal of guardian of insane person, was derived from V.S. 1947, § 3382; P.L. § 3292; G.L. 3722; P.S. § 3229; 1900, No. 40 , § 1; V.S. § 2820; R.L. § 2502; G.S. 72, § 56; R.S. 65, § 47; 1821, p. 70; R. 1797, p. 273, § 16.

§ 3007. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).

History

Former § 3007, relating to discharge of guardian, was derived from V.S. 1947, § 3383; P.L. § 3293; G.L. § 3723; P.S. § 3230; 1900, No. 40 , § 2; V.S. § 2821; R.L. § 2503. G.S. 72, §§ 57, 58; R.S. 65, §§ 48, 49; R. 1797, p. 273, § 16 and amended by 1967, No. 147 , § 19; 1985, No. 144 (Adj. Sess.), § 154 and 1999, No. 147 (Adj. Sess.), § 4.

§§ 3008-3010. Repealed. 1979, No. 76, § 20.

History

Former § 3008, relating to application for discharge of a guardian or legal representative, was derived from 1951, No. 62 , § 2; V.S. 1947, § 3384; P.L. § 3294; G.L. § 3724; P.S. § 3231; 1900, No. 40 , § 3; V.S. § 2822; R.L. § 2504; G.S. 72, §§ 59, 60; R.S. 65, §§ 50, 51, and amended by 1967, No. 147 , § 20; 1973, No. 249 (Adj. Sess.), § 65.

Former § 3009, relating to duties of justices commissioned to inquire into application for discharge of a guardian or legal representative, was derived from V.S. 1947, § 3385; P.L. § 3295; G.L. § 3725; P.S. § 3232; V.S. § 2823; R.L. § 2505; G.S. 72, § 61; R.S. 65, § 52, and amended by 1973, No. 249 (Adj. Sess.), § 66.

Former § 3010, relating to removal of guardian if justices determined that ward no longer needed a guardian, was derived from V.S. 1947, § 3386; P.L. § 3296; G.L. § 3726; P.S. § 3233; V.S. § 2824; R.L. § 2506; G.S. 72, § 62; R.S. 65, § 53, and amended by 1973, No. 249 (Adj. Sess.), § 67.

§ 3011. Special fiduciary.

When a guardian fails to perform duties required by law, the Rules of Probate Procedure, or order of the court, the Probate Division of the Superior Court may suspend the guardian from further duties and appoint a special fiduciary to assume temporarily the powers and duties of the guardian replaced. A special fiduciary shall give a bond as is otherwise required in the proceeding.

Added 1985, No. 144 (Adj. Sess.), § 155; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Cross References

Cross references. Supervision of fiduciaries generally, see Rule 67, Vermont Rules of Probate Procedure.

Subchapter 10. Appeals

§§ 3041-3044. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 3041, relating to appeal from decision of justices under § 3010 of this title, was derived from V.S. 1947, § 3387; P.L. § 3297; G.L. § 3727; P.S. § 3234; V.S. § 2825; R.L. § 2507; G.S. 72, § 63; R.S. 65, § 54.

Former § 3042, relating to trial of appeal under § 3041 of this title, was derived from V.S. 1947, § 3388; P.L. § 3298; G.L. § 3728; P.S. § 3235; R. 1906, § 3114; V.S. § 2826; R.L. § 2508; G.S. 72, § 64; R.S. 65, § 56, and amended by 1971, No. 185 (Adj. Sess.), § 180.

Former § 3043, relating to certification of result of trial to probate court, was derived from V.S. 1947, § 3389; P.L. § 3299; G.L. § 3729; P.S. § 3236; V.S. § 2827; R.L. § 2509; G.S. 72, § 65; R.S. 65, § 57.

Former § 3044, relating to taxation of costs, was derived from V.S. 1947, § 3390; P.L. § 3300; G.L. § 3730; P.S. § 3237; V.S. § 2828; R.L. § 2510; G.S. 72, § 66; R.S. 65, § 58.

Subchapter 11. Powers of Attorney

Cross References

Cross references. Durable power of attorney for health care, see § 1863 et seq. of Title 18.

History

Law review commentaries

Law review. Estate planning for the Family with a Disabled Child, see 14 Vt. L. Rev. 529 (1990).

§§ 3051, 3052. Repealed. 2001, No. 135 (Adj. Sess.), § 18.

History

Former §§ 3051 and 3052, relating to powers of attorney, were derived from 1975, No. 240 (Adj. Sess.), § 9. See now §§ 3501 - 3516.

Subchapter 12. Persons in Need of Guardianship

History

Amendments--2007 (Adj. Sess.). Rewrote the subchapter heading.

Cross References

Cross references. Assignment of cases for hearing and granting of continuances see Rule 40, Vermont Rules of Probate Procedure.

Public guardianship program for mentally disabled adults, see § 3091 et seq. of this title.

ANNOTATIONS

Cited. In re Guardianship of E.B., 152 Vt. 608, 568 A.2d 399 (1989).

Law review commentaries

Law review. Estate Planning for the Family with a Disabled child, see 14 Vt. L. Rev. 529 (1990).

§ 3060. Policy.

Guardianship shall be utilized only as necessary to promote the well-being of the individual and to protect the individual from violations of his or her human and civil rights. It shall be designed to encourage the development and maintenance of maximum self-reliance and independence in the individual and only the least restrictive form of guardianship shall be ordered to the extent required by the individual's actual mental and adaptive limitations. The State of Vermont recognizes the fundamental right of an adult with capacity to determine the extent of health care the individual will receive.

Added 1979, No. 76 , § 15; amended 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Deleted "for mentally disabled persons" following "Guardianship"; inserted "or her" following "his" and "only the least restrictive form of guardianship" preceding "shall"; deleted "only" following "ordered" and added the third sentence.

§ 3061. Definitions.

The words and phrases used in this subchapter shall be defined as follows:

  1. "Person in need of guardianship" means a person who:
    1. is at least 18 years of age; and
    2. is unable to manage, without the supervision of a guardian, some or all aspects of his or her personal or financial affairs as a result of:
      1. significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or
      2. a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.
  2. "Unable to manage his or her personal care" means the inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene, or safety so that physical injury, illness, or disease has occurred or is likely to occur in the near future.
  3. "Unable to manage his or her financial affairs" means gross mismanagement, as evidenced by recent behavior, of one's income and resources which has led or is likely in the near future to lead to financial vulnerability.
  4. "Near relative" means a parent, stepparent, brother, sister, grandparent, spouse, domestic partner, or adult child.
  5. "Interested person" means a responsible adult who has a direct interest in a person in need of guardianship and includes the person in need of guardianship, a near relative, a close friend, a guardian, public official, social worker, physician, agent named in an advance directive or in a power of attorney, person nominated as guardian in an advance directive, or member of the clergy.
  6. "Respondent" means a person who is the subject of a petition filed pursuant to section 3063 of this title or a person under guardianship who is the subject of any subsequent petition, motion, or action filed pursuant to this subchapter.
  7. "Party" shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.
  8. "Person under guardianship" means a person in need of guardianship for whom a guardianship order has been issued.
  9. "Do not resuscitate order" shall have the same meaning as in 18 V.S.A. § 9701(7) .
  10. "Capacity to make medical decisions" means an individual's ability to make and communicate a decision regarding proposed health care based upon having a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.
  11. "Informed consent" means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.
  12. "Assent" means a communication by a person under guardianship that a proposed health care decision by his or her guardian is consistent with his or her preferences, when that person has been found to lack the capacity to provide informed consent.

    Added 1979, No. 76 , § 15; amended 1985, No. 144 (Adj. Sess.), § 156; 1989, No. 191 (Adj. Sess.); 2005, No. 198 (Adj. Sess.), §§ 9, 15, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Section amended generally.

Amendments--2005 (Adj. Sess.). Substituted "developmentally disabled" for "mentally retarded" wherever it appeared throughout the section, added "or a ward who is the subject of any subsequent petition, motion, or action filed pursuant to this subchapter" in subdiv. (11), and added subdivs. (12) and (13).

Amendments--1989 (Adj. Sess.). Subdiv. (10)(A): Substituted "certified clinical" for "masters level" preceding "social worker" and inserted "or certified clinical mental health counselor" thereafter and "and demonstrated competence" following "training".

Subdiv. (10)(B): Deleted "or" preceding "licensed psychologist" and added "certified clinical social worker or certified clinical mental health counselor" thereafter.

Amendments--1985 (Adj. Sess.). Subdiv. (1)(C): Inserted "or her" following "his".

Subdiv. (2): Inserted "or her" following "his".

Subdiv. (3): Inserted "or her" following "his".

Subdiv. (7): Substituted "person interested in the welfare of the ward" for "interested person" preceding "means".

§ 3062. Jurisdiction; review of guardian's actions.

  1. If this State has jurisdiction of a guardianship proceeding pursuant to chapter 114 of this title, then the Probate Division of the Superior Court shall have exclusive jurisdiction over the proceedings. All proceedings to determine whether this court has jurisdiction pursuant to chapter 114 of this title shall be brought in the Probate Division of the Superior Court.
  2. The Probate Division of the Superior Court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to 18 V.S.A. § 9718 .
  3. The Probate Division of the Superior Court shall have supervisory authority over guardians. Any interested person may seek review of a guardian's proposed or past actions by filing a motion with the court.

    Added 1979, No. 76 , § 15; amended 1985, No. 144 (Adj. Sess.), § 157; 2005, No. 55 , § 2, eff. Sept. 1, 2005; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 125, eff. Feb. 1, 2011; 2011, No. 56 , § 26.

History

Amendments--2011. Added subsec. (a) and redesignated former subsecs. (a) and (b) as present subsecs. (b) and (c).

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court" in subsecs. (a) and (b), and made a minor stylistic change in subsec. (a).

Amendments--2007 (Adj. Sess.). Subsec. (a): Added the subsec. designation.

Subsec. (b): Added.

Amendments--2005 Added "or pursuant to section 9718 of Title 18".

Amendments--1985 (Adj. Sess.). Rewrote the section heading and deleted the second sentence.

Cross References

Cross references. Jurisdiction of probate court generally, see § 311 of Title 4.

§ 3063. Petition for guardianship.

An interested person may file a petition with the Probate Division of the Superior Court for the appointment of a guardian. The petition shall state:

  1. the names and addresses of the petitioner and the respondent; if known, the name and address of a near relative of the respondent; the name and address of the person nominated as guardian in an advance directive; and the name and address of the current guardian, and agent named in an advance directive or in a power of attorney;
  2. the interest of the petitioner in the respondent;
  3. that the respondent is alleged to be a person in need of guardianship, and that the respondent is at least 18 years of age or will become 18 years of age within four months of the filing of a petition;
  4. specific reasons with supporting facts why guardianship is sought;
  5. the specific areas where supervision and protection is requested and the powers of the guardian requested for inclusion in the court's order;
  6. the nature, description, and approximate value of the respondent's income and resources, including public benefits and pension;
  7. if a specific individual is proposed as guardian, the name and address of the proposed guardian and the relationship of the proposed guardian to the respondent; and
  8. alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.

    Added 1979, No. 76 , § 15; amended 1983, No. 91 , § 8; 1985, No. 144 (Adj. Sess.), § 158; 2005, No. 198 (Adj. Sess.), § 15, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Section heading: Deleted "total or limited" preceding "guardianship".

Substituted "An interested person" for "Any person interested in the welfare of the ward" and deleted "total or a limited" preceding "guardian" in the introductory paragraph.

Subdiv. (1): Deleted "and" following "respondent" and inserted the language beginning "the name and address of the person" and ending "a power of attorney" following "respondent".

Subdiv. (3): Substituted "that" for "whether" in two places and "a person in need of guardianship" for "mentally ill or developmentally disabled".

Subdiv. (8): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (3): Substituted "developmentally disabled" for "mentally retarded".

Amendments--1985 (Adj. Sess.). Deleted "interested" preceding "person" and inserted "interested in the welfare of the ward" thereafter and "probate" preceding "court" in the introductory paragraph.

Amendments--1983. Subdiv. (3): Added "and whether the respondent is at least eighteen years of age or will become eighteen years of age within four months of the filing of a petition" following "retarded".

Cross References

Cross references. Termination or modification of guardianship, see § 3077 of this title.

§ 3064. Notice of petition and hearing.

  1. Upon the filing of the petition, the Probate Division of the Superior Court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.
  2. The hearing shall be held not less than 15 nor more than 30 days after the filing with the court of the evaluation required by section 3067 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.

    Added 1979, No. 76 , § 15; amended 1985, No. 144 (Adj. Sess.), § 159; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court".

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 3065. Counsel.

    1. The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding. Unless a respondent is already represented, the court: (a) (1)  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding. Unless a respondent is already represented, the court:
      1. shall appoint counsel for the respondent when an initial petition for guardianship is filed;
      2. shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and
      3. may appoint counsel for the respondent on the court's initiative in any subsequent proceeding.
    2. Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.
  2. Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court. Counsel shall consult with the respondent prior to any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents. Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel's own judgment for that of the respondent on the subject of what may be in the best interests of the respondent. Counsel's role shall be distinct from that of a guardian ad litem if one is appointed. At a minimum, counsel shall endeavor to ensure that:
    1. the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;
    2. there is no less restrictive alternative to guardianship or to the matter before the court;
    3. proper due process procedure is followed;
    4. no substantial rights of the respondent are waived, except with the respondent's consent and the court's approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;
    5. the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;
    6. the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and
    7. if a guardian is appointed, the initial order or any subsequent order is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.
  3. Respondent's counsel shall be compensated from the respondent's estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure. For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

    Added 1979, No. 76 , § 15; amended 1991, No. 38 , § 1; 2005, No. 198 (Adj. Sess.), § 10, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Subdiv. (b)(7): Deleted "ward's" preceding "personal freedom" and inserted "of the person under guardianship" thereafter.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--1991. Section amended generally.

§ 3066. Guardian ad litem.

On motion of the respondent's or person under guardianship's counsel or on the court's own motion, the court may appoint a guardian ad litem if it finds the respondent or person under guardianship is unable to communicate with or advise counsel.

Added 1979, No. 76 , § 15; amended 1991, No. 38 , § 2; 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Substituted "person under guardianship's" for "ward" preceding "counsel" and "person under guardianship" for "ward" following "the respondent or".

Amendments--1991. Section amended generally.

ANNOTATIONS

1. Appointment required.

When the issue of competency is in doubt, caution dictates that before hearing any evidence on the issue of competency, the court appoint a guardian ad litem for the defendant. State v. Hackett, 141 Vt. 223, 446 A.2d 369 (1982).

Upon a finding that a defendant is unable to communicate effectively with his attorney, appointment of a guardian is mandatory. State v. Hackett, 141 Vt. 223, 446 A.2d 369 (1982).

§ 3067. Evaluation and report; background check; release of evaluation.

  1. When a petition is filed pursuant to section 3063 of this title, or when a motion for modification or termination is filed pursuant to subdivision 3077(a)(4) of this title, the court shall order an evaluation of the respondent. Except as otherwise provided in this subsection, the cost of the evaluation shall be paid for out of the respondent's estate or as ordered by the court. If the respondent is unable to afford some or all of the cost of the evaluation without expending income or liquid resources necessary for living expenses, the court shall order that the Department of Mental Health or the Department of Disabilities, Aging, and Independent Living provide the evaluation through qualified evaluators.
  2. The evaluation shall be performed by someone who has specific training and demonstrated competence to evaluate a person in need of guardianship. The evaluation shall be completed within 30 days of the filing of the petition with the court unless the time period is extended by the court for cause.
  3. The evaluation shall:
    1. describe the nature and degree of the respondent's disability, if any, and the level of the respondent's intellectual, developmental, and social functioning;
    2. contain recommendations, with supporting data, regarding:
      1. those aspects of his or her personal care and financial affairs that the respondent can manage without supervision or assistance;
      2. those aspects of his or her personal care and financial affairs that the respondent could manage with the supervision or assistance of support services and benefits;
      3. those aspects of his or her personal care and financial affairs that the respondent is unable to manage without the supervision of a guardian;
      4. those powers and duties as set forth in sections 3069 and 3071 of this title that should be given to the guardian, including the specific support services and benefits that should be obtained by the guardian for the respondent.
  4. The proposed guardian shall provide the court with the information and consents necessary for a complete background check. Not more than 14 days after receipt of an evaluation supporting guardianship of the respondent, the court shall order from the respective registries background checks of the proposed guardian from any available State registries, including the Adult Abuse Registry, Child Abuse Registry, Vermont Crime Information Center, and the Vermont State Sex Offender Registry, and the court shall consider information received from the registries in determining whether the proposed guardian is suitable. However, if appropriate under the circumstances, the court may waive the background reports or may proceed with appointment of a guardian prior to receiving the background reports, provided that the court may remove a guardian if warranted by background reports that the court receives after the guardian's appointment. If the proposed guardian has lived in Vermont for fewer than five years or is a resident of another state, the court may order background checks from the respective state registries of the states in which the proposed guardian lives or has lived in the past five years or from any other source. The court shall provide copies of background check reports to the petitioner, the respondent, and the respondent's attorney.
  5. Regardless of whether the report of the evaluator supports or does not support guardianship, the court shall provide a copy of the evaluation to the respondent, the respondent's attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent. The evaluation shall remain confidential, and recipients of the evaluation are prohibited from sharing the evaluation. Notwithstanding the foregoing, the court may restrict access to the evaluation or portions of the evaluation upon objection by one of the parties or on the court's own motion.

    Added 1979, No. 76 , § 15; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 24; 2007, No. 15 , § 7; 2007, No. 186 (Adj. Sess.), § 1; 2017, No. 11 , § 35.

History

Amendments--2017. Subsec. (d): Substituted "14" for "10" following "more than" and deleted "but not limited to" following "including" in the second sentence.

Amendments--2007 (Adj. Sess.). Section amended generally.

Amendments--2007. Subsec. (a): Inserted "mental" preceding "health" in the third sentence.

Amendments--2005 (Adj. Sess.). Subsec. (a): In the last sentence, substituted "department of health or the department of disabilities, aging, and independent living" for "department of developmental and mental health services" and "departments" for "department" at the end.

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation" in the second sentence.

Amendments--1989 (Adj. Sess.). Subsec. (a): Inserted "and mental retardation" following "mental health" in the third sentence.

ANNOTATIONS

Analysis

1. Construction.

Use of the word "notwithstanding" demonstrates that the Legislature conferred upon the Probate Division an additional power to restrict access to involuntary guardianship evaluations, or portions thereof, above and beyond the confidentiality and access restrictions previously enumerated in that subsection. Accordingly, the Probate Division has jurisdiction under appropriate circumstances to make an order restricting access to an evaluation. In re Guardianship of A.S., 192 Vt. 631 (mem.), 57 A.3d 716 (2012).

2. Applicability.

Fact that the order requesting an involuntary guardianship evaluation may have been a mistake does not negate the evaluation's status as an evaluation under the involuntary guardianship statute. Thus, the probate court's authority with respect to the disposition of that report is governed by the statute in particular, as well as the probate court's general powers. In re Guardianship of A.S., 192 Vt. 631 (mem.), 57 A.3d 716 (2012).

3. Particular cases.

Although the probate court had the authority to seal an initial evaluation in a guardianship proceeding, it erred in sealing the evaluation here. It did not act out of concern for the privacy of the ward or other confidentiality interests; rather, its concern was that the entity which performed the evaluation might have a legal obligation to take further action with respect to the ward than it would not otherwise have had if the evaluation had been limited to what was permitted under another statute. In re Guardianship of A.S., 192 Vt. 631 (mem.), 57 A.3d 716 (2012).

§ 3068. Hearing.

  1. The respondent, the petitioner and all other persons to whom notice has been given pursuant to section 3064 of this title may attend the hearing and testify. The respondent and the petitioner may subpoena, present, and cross-examine witnesses, including those who prepared the evaluation. The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.
  2. The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the mental or physical health of the respondent.
  3. The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena. However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record. In all cases, the court shall make specific findings of fact, state separately its conclusions of law and direct the entry of an appropriate judgment.
  4. The petitioner may be represented by counsel in any proceedings brought under this chapter.
  5. If upon completion of the hearing and consideration of the record the court finds that the respondent is not a person in need of guardianship, it shall dismiss the petition and seal the records of the proceeding.
  6. If upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by clear and convincing evidence that the respondent is a person in need of guardianship or will be a person in need of guardianship on attaining 18 years of age, it shall enter judgment specifying the powers of the guardian pursuant to sections 3069 and 3070 of this title and the duties of the guardian pursuant to section 3071 of this title.
  7. Any party to the proceeding before the court may appeal the court's decision in the manner provided in section 3080 of this title.

    Added 1979, No. 76 , § 15; amended 1983, No. 91 , § 9; 2007, No. 186 (Adj. Sess.), § 1.

History

Reference in text. Section 3070, referred to in subsec. (f), was repealed by 2007, No. 186 (Adj. Sess.), § 1.

Amendments--2007 (Adj. Sess.). Subsec. (e): Substituted "a person in need of guardianship" for "mentally disabled".

Subsec. (f): Substituted "a person in need of guardianship" and "a person in need" for "mentally disabled" and "18" for "eighteen".

Amendments--1983. Subsec. (f): Inserted "or will be mentally disabled on attaining eighteen years of age" following "is mentally disabled".

§ 3068a. Rights of a person under guardianship.

A person under guardianship retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and U.S. constitutions and all the laws and regulations of Vermont and the United States. These rights include:

  1. The right to participate in decisions made by the guardian and to have personal preferences followed unless:
    1. the preference is unreasonable and would result in actual harm; or
    2. the person under guardianship does not have a basic understanding of the benefits and consequences of his or her chosen preference.
  2. The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the person under guardianship.
  3. The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.

    Added 2005, No. 198 (Adj. Sess.), § 11, eff. Sept. 1, 2006; amended 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Section heading: Substituted "person under guardianship" for "ward".

Introductory paragraph: Substituted "person under guardianship" for "ward" preceding "retains".

Subdiv. (1)(B): Substituted "person under guardianship" for "ward" preceding "does".

Subdiv. (2): Substituted "person under guardianship" for "ward" at the end of the subdivision.

Subdiv. (3): Added.

§ 3069. Powers of a guardian.

  1. If the court enters judgment pursuant to subsection 3068(f) of this title, it may appoint a guardian if it determines that the respondent is unable to manage, without the supervision of a guardian, any or all aspects of his or her personal care and financial affairs.
  2. When the person under guardianship has an advance directive, the authority of the agent and the instructions contained therein shall remain in effect unless the Probate Division of the Superior Court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718 .
  3. The court shall grant powers to the guardian in the least restrictive manner appropriate to the circumstances of the respondent and consistent with any advance directive. Guardianship powers shall be ordered only to the extent required by the respondent's actual mental and adaptive limitations. The court shall specify which of the following powers the guardian shall have and may further restrict each power so as to preserve the respondent's authority to make decisions commensurate with respondent's ability to do so:
    1. The power to exercise general supervision over the person under guardianship. This includes care, habilitation, education, and employment of the person under guardianship and choosing or changing the residence, subject to the requirements of sections 2691, 3073, and 3074 of this title.
    2. The power to seek, obtain, and give or withhold consent to the initiation or continuation of medical or dental treatment, subject to the provisions of section 3075 of this title and any constitutional right of the person under guardianship to refuse treatment, provided that the court in its discretion may place limitations on the guardian's powers under this subdivision if appropriate under the circumstances, including requiring prior court approval for specific surgeries, procedures, or treatments.
    3. The power to exercise general financial supervision over the income and resources of the person under guardianship. This includes the power to seek or apply for, receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the person under guardianship, to liquidate personal property for the benefit of the person under guardianship, to settle accounts, demands, claims, and actions by or against the person under guardianship, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the person under guardianship.
    4. The power to approve or withhold approval of any contract, except for necessaries, which the person under guardianship wishes to make.
    5. The power to approve or withhold approval of the sale or encumbrance of real property of the person under guardianship subject to subchapter 6 of this chapter.
    6. The power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship.
    1. When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a "limited guardianship" and the guardian identified as a "limited guardian." (d) (1)  When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a "limited guardianship" and the guardian identified as a "limited guardian."
    2. A person for whom limited guardianship has been granted retains all the powers identified in subsection (c) of this section except those which have been specifically granted to the limited guardian.
  5. The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.
  6. The guardian shall encourage the person under guardianship to participate in decisions, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible. The wishes, values, beliefs, and preferences of the person under guardianship shall be respected to the greatest possible extent in the exercise of all guardianship powers.

    Added 1979, No. 76 , § 15; amended 2005, No. 198 (Adj. Sess.), § 12, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subdiv. (b)(6), deleted "at law or in equity" following "claims and actions" to conform reference to Rule 2, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (ADJ. SESS.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Section heading: Deleted "total" preceding "guardian".

Subsec. (a): Deleted "total" preceding "guardian"; inserted "any or" following "guardian" and "or her" following "his".

Subsecs. (b) and (c): Rewrote the subsecs.

Subdiv. (c)(1): Inserted "the power" preceding "to exercise"; substituted "person under guardianship" for "ward"; inserted "care, habilitation, education, and employment of the person under guardianship and" preceding "choosing" and deleted "care, habilitation, education, and employment of the ward" following "title".

Subdivs. (c)(2)-(c)(6): Rewrote the subdivs.

Subsec. (d): Rewrote the subsec.

Subsecs. (e) and (f): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (b)(5): Inserted "subsection 9711(g) of Title 18" following "title".

ANNOTATIONS

Analysis

1. Divorces.

Like the majority of jurisdictions around the country, Vermont continues to conclude that the right to end a marriage through divorce is volitional and personal such that the Legislature did not intend, through a general grant of authority, to permit it to be carried out by a guardian. If the Vermont Supreme Court were to imply this power, it would encroach on an area that the Legislature has seen fit to address by statute, and without any airing of the multiple issues of public policy that might be relevant to the question. Samis v. Samis, 189 Vt. 434, 22 A.3d 444 (2011).

Without specific authority in the statute granting a guardian the power to obtain legal advice and to commence court actions in the name of the person under guardianship, a guardian was without power to file a divorce on a wife's behalf, and the husband's motion to dismiss should have been granted. Samis v. Samis, 189 Vt. 434, 22 A.3d 444 (2011).

2. Approval of contract.

When a guardian signed a promissory note on a line bearing the pre-printed designation "Borrower," with no reference to her status as the ward's guardian, a factfinder could easily infer that the guardian's signature reflected her assent to the loan. The question of the "capacity" in which she signed the document might very well be critical to an assessment of the ward's own personal liability on the note, but was not determinative of the question of whether she approved his entering into the contract. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

Vermont Code requires a guardian's approval of a ward's execution of a contract; it does not prescribe any particular requirements for documenting that approval, and does not require the guardian to cosign agreements executed by the ward with her approval, let alone to cosign in a particular "capacity." The statute simply requires the guardian's approval. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

Cited. In re S.A., 155 Vt. 112, 582 A.2d 137 (1990).

§ 3070. Repealed. 2007, No. 186 (Adj. Sess.), § 1.

History

Former § 3070, relating to powers of a limited guardian, was derived from 1979, No. 76 , § 15.

§ 3071. Duties of guardian.

  1. The guardian shall maintain close contact with the person under guardianship and encourage maximum self-reliance on the part of the person under guardianship.
  2. In addition to the powers vested in the guardian by the court pursuant to section 3069 of this title, the court may order the guardian to assure that the person under guardianship receives those benefits and services to which he or she is lawfully entitled and needs to maximize his or her opportunity for social and financial independence. Those benefits and services include, but are not limited to:
    1. education services for a person under guardianship who is of school age;
    2. residential services for a person under guardianship who lacks adequate housing;
    3. nutrition services;
    4. medical and dental services, including home health care;
    5. therapeutic and habilitative services, adult education, vocational rehabilitation, or other appropriate services.
  3. The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.

    Added 1979, No. 76 , § 15; amended 2007, No. 186 (Adj. Sess.), § 1.

History

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "person under guardianship" for "ward" and "ward under his protection".

Subsec. (b): Substituted "section" for "sections" preceding "3069"; deleted "and 3070" preceding "of this title"; substituted "person under guardianship" for "ward" preceding "receives" and inserted "or she" following "he" and "or her" following "his".

Subdivs. (b)(1) and (2): Substituted "person under guardianship" for "ward" preceding "who".

Subsec. (c): Added.

§ 3072. Guardians; individuals who may serve.

    1. Competent individuals of at least 18 years of age may serve as guardians. (a) (1)  Competent individuals of at least 18 years of age may serve as guardians.
    2. No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual operates a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care.
    3. No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding.
    4. Notwithstanding the provisions of section 2603 of this title, the court shall have the discretion to appoint a guardian who is not a resident of this State, provided that the individual appointed is otherwise qualified to serve.
  2. In appointing an individual to serve as guardian, the court shall take into consideration:
    1. the nomination of a guardian in an advance directive or in a will;
    2. any current or past expressed preferences of the respondent;
    3. the geographic location of the proposed guardian;
    4. the relationship of the proposed guardian and the respondent;
    5. the ability of the proposed guardian to carry out the powers and duties of the guardianship;
    6. the willingness and ability of the proposed guardian to communicate with the respondent and to respect the respondent's choices and preferences;
    7. potential financial conflicts of interest between the respondent and the proposed guardian, and any conflicts that may arise if the proposed guardian is an employee of a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the respondent resides or is receiving care; and
    8. results of any background checks.

      Added 1979, No. 76 , § 15; amended 1983, No. 91 , § 7; 1985, No. 151 (Adj. Sess.), § 13; 2007, No. 186 (Adj. Sess.), § 1.

History

Revision note. In subsec. (a), substituted "section 2603" for "section 2603(a)" to correct an error in the reference in light of the amendment to that section by 1985, No. 144 (Adj. Sess.), § 118.

Amendments--2007 (Adj. Sess.). Subsec. (a): Added (a)(1) through (a)(4) designations, substituted "18" for "eighteen" preceding "years" and deleted the former second sentence in (a)(1), and added (a)(2).

Subsec. (b): Substituted "the nomination of a guardian in an advance directive or in a will" for "the preference of the ward" in subdiv. (1); added the present subdiv. (2); redesignated former subdivs. (2) through (4) as present subdivs. (3) through (5); redesignated former subdiv. (5) as present subdiv. (7); substituted "and" for "to" and "respondent" for "ward" in present subdivs. (4) and (7); inserted the language beginning "and any conflicts that may" and ending "receiving care; and" following "guardian" in subdiv. (7) and added present subdivs. (6) and (8).

Amendments--1985 (Adj. Sess.). Subsec. (a): Substituted "residential" for "community" preceding "care home" in the second sentence.

Amendments--1983. Subsec. (a): Added the fourth sentence.

§ 3073. Change of residential placement.

    1. When a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title wishes to admit the person under guardianship to a nursing home or change the residential placement of the person under guardianship from a private home to a boarding home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so. (a) (1)  When a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title wishes to admit the person under guardianship to a nursing home or change the residential placement of the person under guardianship from a private home to a boarding home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so.
    2. For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.
    1. In an emergency, a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title may change the residential placement of the person under guardianship without petitioning the court for prior permission or without giving prior notice to parties. Immediately after any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement. (b) (1)  In an emergency, a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title may change the residential placement of the person under guardianship without petitioning the court for prior permission or without giving prior notice to parties. Immediately after any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.
    2. Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.
    3. Any party may request a hearing on a change in residential placement. The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.
  3. In a hearing on a change of placement, the court shall consider:
    1. the need for the change of placement;
    2. the appropriateness of the new placement;
    3. the wishes of the person under guardianship, if known; and
    4. whether the guardian has considered alternatives.

      Added 1979, No. 76 , § 15; amended 1985, No. 144 (Adj. Sess.), § 160; 1985, No. 151 (Adj. Sess.), § 14; 2005, No. 198 (Adj. Sess.), § 13, eff. May 30, 2006; 2007, No. 186 (Adj. Sess.), § 1.

History

2010. Substituted "3069(c)(1)" for "3069(b)(1)" in subdivs. (a)(1), (a)(2), and (b)(1), to correct an error in the reference.

Amendments--2007 (Adj. Sess.). Subdiv. (a)(1): Substituted "person under guardianship" for "ward" throughout the subdivision.

Subdiv. (a)(2): Substituted "person under guardianship" for "ward" preceding "pursuant".

Subdiv. (b)(1): Substituted "person under guardianship" for "ward" preceding "pursuant" and "without".

Subdiv. (c)(3): Substituted "person under guardianship" for "ward".

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Subsec. (a): Act No. 144 substituted "file a motion" for "petition the appointing court or the court where venue lies" preceding "for permission".

Act No. 151 substituted "residential" for "community" preceding "care home".

Subsec. (b): Act No. 144 substituted "file a motion" for "petition the probate court where venue lies" preceding "for permission" in the second sentence.

Act No. 151 substituted "residential" for "community" preceding "care home" in the first sentence.

Cross References

Cross references. Service of motion to change residential placement, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 3074. Commitment, sterilization, involuntary treatment, and involuntary medication.

Nothing in this chapter shall give the guardian of a person authority to:

  1. place that person in a State school or hospital except pursuant to 18 V.S.A. § 7601 et seq. or 18 V.S.A. § 8801 et seq.
  2. consent to an involuntary treatment or medication petition pursuant to 18 V.S.A. chapter 181.
  3. consent to sterilization or to a petition for involuntary sterilization pursuant to 18 V.S.A. chapter 204.
  4. consent to a petition for custody, care, or habilitation filed pursuant to 18 V.S.A. chapter 206.

    Added 1979, No. 76 , § 15; amended 2007, No. 186 (Adj. Sess.), § 1.

History

Reference in text. Sections 7601-7608 of Title 18, referred to in this section, were repealed by 1977, No. 252 (Adj. Sess.), § 36.

Sections 8801-8810 of Title 18, referred to in this section, were repealed by 1979, No. 167 (Adj. Sess.), § 3.

Amendments--2007 (Adj. Sess.). Section heading: Rewrote the section heading.

Added the subdiv. (1) designation and substituted "person" for "ward" preceding "authority" in that subdiv.

Subdivs. (2)-(4): Added.

§ 3075. Consent for medical or dental treatment.

  1. A person under guardianship retains the right to make medical and dental decisions unless that right has been restricted pursuant to subdivision 3069(c)(2) of this title.
  2. A person whose right to make medical decisions has been restricted pursuant to subdivision 3069(c)(2) of this section who has the capacity to make a specific medical decision retains the right to make that decision.
  3. Unless an advance directive or the authority of an agent is expressly revoked or modified by the court pursuant to 18 V.S.A. § 9718 , the advance directive of a person under guardianship shall remain in effect, and the agent shall have sole authority to make health care decisions for the person under guardianship pursuant to 18 V.S.A. chapter 231.
  4. If there is no agent named in the advance directive, or if the office of agent is vacant, the guardian shall follow the instructions contained in the advance directive.
  5. For a person whose right to consent to medical or dental procedures has been restricted pursuant to subdivision 3069(c)(2) of this title, the guardian may give or withhold consent pursuant to this section and subject to any constitutional right of the person under guardianship to refuse treatment.
  6. Consent to the procedure shall be given or withheld consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information concerning the person's wishes. In making this determination, the guardian and the court in reviewing a guardian's decision under this section shall:
    1. Rely on written and oral expressions of the person under guardianship.
    2. Rely on available information concerning the wishes, values, beliefs, and preferences of the person under guardianship if the person's written and oral expressions do not provide sufficient information.
    3. Follow the best interests of the person under guardianship if subdivisions (1) and (2) of this subsection are inapplicable. No decision to withhold or abate medical treatment will be based solely on the age, economic level, or level of disability of the person under guardianship.
    1. The guardian shall obtain prior written approval by the Probate Division of the Superior Court following notice and hearing: (g) (1)  The guardian shall obtain prior written approval by the Probate Division of the Superior Court following notice and hearing:
      1. If the person under guardianship objects to the guardian's decision, on constitutional grounds or otherwise.
      2. If the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian.
      3. Except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics.
      4. Unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order or clinician order for life-sustaining treatment, as defined in 18 V.S.A. § 9701(6) , unless a clinician as defined in 18 V.S.A. § 9701(5) certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained. In such circumstances, the guardian shall immediately notify the court of the need for a decision, shall obtain the clinician's certification prior to consenting to the do-not-resuscitate order or clinician order for life-sustaining treatment, and shall file the clinician's certification with the court after consent has been given.
    2. The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the need for a decision before court approval can be obtained. In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, and shall notify the court of any decision made.
  8. The procedures in 18 V.S.A. chapter 181 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.

    Added 1979, No. 76 , § 15; 2007, No. 186 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 127 (Adj. Sess.), § 3, eff. May 10, 2014.

History

Amendments--2013 (Adj. Sess.). Subdiv. (g)(1)(D): Inserted "or clinician order for life sustaining treatment, as defined in 18 V.S.A. § 9701(6)," following "do-not-resuscitate order" and "or clinician order for life sustaining treatment" following "do-not-resuscitate order" in the second sentence.

Amendments--2009 (Adj. Sess.) Subdiv. (g)(1): Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Section heading: Inserted "or dental" preceding "treatment".

Subsecs. (a) and (b): Amended generally.

Subsecs. (c)-(h): Added.

Cross References

Cross references. Service of motion to approve consent to nonemergency surgery or medical procedures, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 3076. Annual reports; final accounting; fees.

  1. The guardian shall file an annual report with the appointing court within 30 days of the anniversary date of the appointment.
  2. The annual report shall contain:
    1. a financial accounting as required by section 2921 of this title if the guardian has been granted power over income and resources pursuant to subdivision 3069(c)(4) of this title;
    2. a report on the progress and condition of the person under guardianship, including his or her health, medical and dental care, residence, education, employment, and habilitation;
    3. a report on the manner in which the guardian carried out his or her powers and fulfilled his or her duties; and
    4. the guardian's opinion regarding the continued need for guardianship.
  3. If the guardian has been granted power over income and resources pursuant to subdivision 3069(c)(4) of this title, at the termination of the guardianship, the guardian shall render a final accounting as required by section 2921 of this title.
    1. Except as provided in subdivision (2) of this subsection, the guardian shall not be paid any fees to which he or she may be entitled, or reimbursed for any of his or her expenses from the estate of the person under guardianship until the annual reports or final accounting required by this section has been filed with the court. (d) (1)  Except as provided in subdivision (2) of this subsection, the guardian shall not be paid any fees to which he or she may be entitled, or reimbursed for any of his or her expenses from the estate of the person under guardianship until the annual reports or final accounting required by this section has been filed with the court.
    2. The guardian may at any time apply by motion to the Probate Division of the Superior Court for payment of fees or reimbursement of expenses incurred as a result of the guardianship. The court may grant the motion and approve payment if it finds the expenses were reasonable and supported by documentary evidence.

      Added 1979, No. 76 , § 15; amended 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

2010. In subdiv. (b)(1) and subsec. (c), substituted "3069(c)(4)" for "3069(b)(4)" to correct an error in the reference.

Amendments--2009 (Adj. Sess.) Subdiv. (d)(2): Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Subsec. (a): Deleted "of a ward" following "guardian" and substituted "within 30 days" for "on" following "court" and "the" for "his" preceding "appointment".

Subdiv. (b)(1): Deleted "the ward's" preceding "income" and substituted "subdivision" for "section" preceding "3069(b)(4)".

Subdiv. (b)(2): Substituted "person under guardianship" for "ward" preceding "including"; deleted "but not limited to" following "including"; and inserted "or her" following "his".

Subdiv. (b)(3): Inserted "or her" following "his" in two places.

Subsec. (c): Deleted "the ward's" preceding "income" and substituted "subdivision" for "section" preceding "3069(b)(40)".

Subdiv. (d)(1): Amended generally.

Subdiv. (d)(2): Added.

§ 3077. Termination and modification of guardianship.

  1. A person under guardianship or any person interested in the welfare of the person under guardianship may file a motion for termination or modification of the guardianship. Grounds for the termination or modification of the guardianship shall include:
    1. the death of the guardian;
    2. the failure of the guardian to file an annual report, or the failure to file such report in a timely manner;
    3. the failure of the guardian to act in accord with an order of the court;
    4. a change in the ability of the person under guardianship to manage his or her personal care or financial affairs;
    5. a change in the capacity or suitability of the guardian for carrying out his or her powers and duties, including any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.
  2. After notice and hearing, the court may terminate or modify the guardianship, appoint a successor guardian, or restrict the powers of a guardian, consistent with the court's findings and conclusions of law.
  3. Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.
  4. Marriage of the person under guardianship shall not extinguish a guardian's authority.
  5. The following guardianship powers shall remain for up to two years after the death of a person under guardianship or until the appointment of an executor or administrator of the person's estate:
    1. the power to arrange and pay for a funeral;
    2. the power to request medical, financial, or other records of the person in guardianship;
    3. the power to request an autopsy and to obtain the results thereof;
    4. the power to make and file a financial accounting; and
    5. any other powers which are incidental to the closing of and accounting for the guardianship and which are fully reported to the Probate Division of the Superior Court.

      Added 1979, No. 76 , § 15; amended 1985, No. 144 (adj. Sess.), § 161; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

2019. In subdiv. (A)(5) Deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

In subsec. (c), substituted "motion" for "petition" for purposes of conformity with subsec. (a), as amended.

Amendments--2009 (Adj. Sess.) Subdiv. (e)(5): Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "A person under guardianship or" for "Any" and "person under guardianship" for "ward".

Subdiv. (a)(2): Inserted "or the failure to file such report in a timely manner" following "report".

Subdiv. (a)(4): Substituted "person under guardianship" for "ward".

Subdiv. (a)(5): Amended generally.

Subsec. (b): Rewrote the subsec.

Subsec. (d): Inserted "of the person under guardianship" following "Marriage".

Subsec. (e): Added.

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "interested" following "any", inserted "interested in the welfare of the ward" preceding "may" and substituted "file a motion" for "petition the appointing court or the court where venue lies" thereafter in the introductory paragraph and inserted "or her" following "his" in subdivs., (4) and (5).

ANNOTATIONS

1. Collateral estoppel.

Application of the doctrine of collateral estoppel was inappropriate with respect to the substantiation of a mother's abuse of her developmentally disabled daughter because the issues in a probate court proceeding involving her termination of guardianship over the daughter were separate and distinguishable, and the legal standards and burdens employed in each action were different. In re Harwood, 195 Vt. 7, 86 A.3d 976 (2013).

§ 3078. Annual notice to person in need of guardianship.

The appointing court shall send an annual notice to each person under guardianship and the counsel of record of each person under guardianship, advising the person under guardianship of his or her right to file a motion for termination or modification of the guardianship pursuant to section 3077 of this title. The notice shall include a copy of any accountings, reports, or other information filed by the guardian during the year, except when there is counsel of record and the court deems it is in the best interests of the person under guardianship to send the accountings, reports, and other information to counsel only.

Added 1979, No. 76 , § 15; amended 1991, No. 38 , § 3; 2007, No. 186 (Adj. Sess.), § 1.

History

Revision note. For purposes of conformity with section 3077 of this title, as amended, substituted "file a motion" for "petition".

Amendments--2007 (Adj. Sess.). Section heading: Substituted "person in need of guardianship" for "ward".

Substituted "person" for "ward" following "each"; deleted "ward's" preceding "counsel"; inserted "of each person under guardianship" following "record"; and substituted "person under guardianship" for "ward" in two places.

Amendments--1991. Substituted "the ward's" for "his" preceding "counsel" and inserted "or her" preceding "right" in the first sentence and added the second sentence.

§ 3079. Validity of prior guardianship.

All guardianships approved pursuant to section 2671 et seq. and section 2683 et seq. of this title prior to July 1, 1979 remain valid. On the first anniversary date of such guardianship after July 1, 1979, the court which approved such guardianship shall send notice to each person under guardianship, his or her counsel of record, and a near relative of the person under guardianship, if known, advising them of the right of the person under guardianship to petition for termination or modification of the guardianship pursuant to section 3077 of this title. Upon the filing of such a petition, the court shall promptly arrange for a comprehensive evaluation of the person under guardianship pursuant to section 3067 of this title.

Added 1979, No. 76 , § 15; amended 2007, No. 186 (Adj. Sess.), § 1.

History

Reference in text. Section 2683 of this title, referred to in this section, was repealed pursuant to 1979, No. 76 , § 20.

Revision note. The words "the effective date of this act" were changed to "July 1, 1979" to reflect effective date of 1979, No. 76 , § 15.

Amendments--2007 (Adj. Sess.). Substituted "person under guardianship" for "ward" throughout; inserted "or her" following "his"; deleted "ward's" preceding "right" and inserted "of the person under guardianship" thereafter.

§ 3080. Appeals.

Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in 12 V.S.A. § 2551 et seq. and Rule 72, Vermont Rules of Civil Procedure, provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.

Added 1979, No. 76 , § 15.

§ 3081. Emergency temporary guardian pending final hearing on petition.

  1. When a petition for guardianship has been filed, but adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent's physical health or financial interests, the Probate Division of the Superior Court may appoint an emergency temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.
  2. If a guardianship petition is accompanied by a motion for emergency temporary guardianship, the court shall schedule a hearing on the appointment of an emergency temporary guardian for the earliest possible date. The court shall appoint counsel for the respondent and cause notice to be given as provided by the Vermont Rules of Probate Procedure (VRPP). Upon a showing by sworn affidavit that notice cannot be given within the time periods, in the manner, or to the persons required by the VRPP, the court may allow a hearing to go forward upon such notice as the court may direct. The court may appoint an emergency temporary guardian if it finds that serious and irreparable harm to the respondent's physical health or financial interests will likely result during the pendency of the petition.
  3. An emergency temporary guardian may be appointed without notice to the respondent or respondent's counsel only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious, and irreparable harm will result to the respondent before the hearing on the appointment of an emergency temporary guardian can be held. A request for ex parte emergency temporary guardianship under this section shall be made by written motion, accompanied by a petition for guardianship, unless waived by the court for good cause shown. If the court appoints an ex parte emergency temporary guardian, the court shall immediately schedule a temporary hearing in accordance with subsection (b) of this section. The ex parte order shall state why the order was granted without notice and include findings on the immediate, serious, and irreparable harm. The ex parte order shall be for a fixed period of time, not to exceed 14 days, and shall expire on its terms unless extended after the temporary hearing. If the temporary hearing cannot be held before the ex parte order expires, the ex parte order can be extended for good cause shown for an additional 14 days until the temporary hearing is held.
  4. A temporary guardianship order expires when the court renders a final decision on the guardianship petition. If the final decision is not rendered within 90 days of the filing of the petition, the court shall schedule a hearing to review the need for continuation of the temporary guardianship order.

    Added 1981, No. 101 ; amended 1985, No. 144 (Adj. Sess.), § 162; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 11 , § 36.

History

Amendments--2017. Subsec. (c): Substituted "14" for "10" preceding "days" in the fifth and sixth sentences.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court".

Amendments--2007 (Adj. Sess.). Section heading: Inserted "Emergency" preceding "temporary guardian", "final" following "pending" and "on petition" following "hearing.

Subsec. (a): Substituted "an emergency" for "a" preceding "temporary guardian".

Subsecs. (b) and (c): Amended generally.

Subsec. (d): Added.

Amendments--1985 (Adj. Sess.). Subsec. (a): Inserted "probate" preceding "court".

Subsec. (b): Rewrote the first sentence.

Cross References

Cross references. Service of petition to appoint temporary guardian, see Rule 5.1, Vermont Rules of Probate Procedure.

Subchapter 13. Public Guardian

§ 3091. Office of Public Guardian established.

  1. An Office of Public Guardian is established within the Department of Disabilities, Aging, and Independent Living for the purpose of making guardianship services available to mentally disabled persons 60 years of age or older for whom the Probate Division of the Superior Court is unable to appoint a guardian from the private sector.
  2. The Commissioner of the Department of Disabilities, Aging, and Independent Living shall employ persons as public guardians to act as designees of the Office and to carry out the duties of the Office of Public Guardian. Public guardians shall be available for appointment in each of the planning and service areas served by the area agencies on aging.
  3. The Commissioner of the Department of Disabilities, Aging, and Independent Living may adopt rules necessary to accomplish the purposes of this subchapter including standards relating to the maximum number of appointments that may be accepted by the Office.

    Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 1; 1989, No. 219 (Adj. Sess.), § 9(a), (b); 2005, No. 174 (Adj. Sess.), § 25; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

2019. In subsec. (c) Deleted ", but not limited to," following "including" in accordance with 2013, No. 5 , § 4.

References to "office on aging" and "director of the office on aging" changed to "department of rehabilitation and aging" and "commissioner of rehabilitation and aging" in view of Executive Order No. 70, which provided for the abolition of the office on aging and the transfer of the duties, responsibilities and authority of that entity to the department of rehabilitation and aging as established by the order. The order further provided for the redesignation of the exempt position of director of the office on aging as the commissioner of rehabilitation and aging. By its own terms, Executive Order No. 70 took effect on May 1, 1989, pursuant to section 2002 of Title 3. For the text of Executive Order No. 70, see chapter 1 of Title 3 Appendix.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court".

Amendments--2005 (Adj. Sess.). Substituted "department of disabilities, aging, and independent living" for "department of aging and disabilities" wherever it appeared throughout the section.

Amendments--1989 (Adj. Sess.). Act No. 151 substituted "office of public guardian" for "public guardianship program" preceding "established" in the section heading, substituted "an office of public guardian" for "a public guardianship program" preceding "is established" in subsec. (a), deleted "to serve" preceding "as public guardians" and added "to act as designees of the office and to carry out the duties of the office of public guardian" thereafter in the first sentence of subsec. (b), and substituted "the office" for "a public guardian" following "accepted by" in subsec. (c).

Act No. 219 substituted "department of aging and disabilities" for "department of rehabilitation and aging" in subsec. (a), and "commissioner of the department of aging and disabilities" for "commissioner of the department of rehabilitation and aging" in the first sentence of subsec. (b) and near the beginning of subsec. (c).

Cross References

Cross references. Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

§ 3092. Appointment of the Office of Public Guardian.

  1. The Office of Public Guardian may be nominated and appointed to serve as guardian, under subchapter 12 of this chapter, of a person who is 60 years of age or older if the court determines that there is no suitable private guardian qualified and willing to accept the guardianship appointment and the appointment will not result in the Office having more appointments than permitted by rules adopted under section 3091 of this title.
  2. Neither the Office of Public Guardian or its designees may petition for guardianship.
  3. The Office of Public Guardian may combine the bonding requirement under section § 2751 of this title for some or all of its wards by purchasing a bond in an amount equal to or greater than the aggregate sum of the resources of the wards for whom the bond is issued.  The amount of this bond shall be adjusted as necessary to reflect fluctuations in the aggregate amount of wards' resources.

    Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 2.

History

Amendments--1989 (Adj. Sess.). Inserted "the office of" preceding "public" in the section heading, in subsec. (a) substituted "the office of" for "a" preceding "public guardian may", "office" for "public guardian" preceding "having more", deleted "he or she is" preceding "permitted" and substituted "by rules adopted under section 3091 of this title" for "to accept" thereafter, in subsec. (b) substituted "neither the office of" for "a" preceding "public", inserted "or its designees" preceding "may" and deleted "not" thereafter, and added subsec. (c).

§ 3093. Powers and duties of Public Guardian.

In addition to the powers and duties of guardians set forth in subchapter 12 of this chapter, the Office of Public Guardian through its designees shall:

  1. Be considered a person interested in the welfare of the ward for purposes of filing a motion under section 3077 of this title for termination or modification of guardianship.
  2. Visit the facility in which the ward is to be placed if it is proposed that the ward be placed outside his or her home.
  3. Monitor the ward and the ward's care and progress on a continuing basis.  Monitoring shall, at a minimum, consist of quarterly personal contact with the ward.  The Office of Public Guardian shall maintain a written record of each visit with a ward.  A copy of this record shall be filed with the Probate Division of the Superior Court as part of the annual report required under section 3076 of this title.  The Office, through its designees, shall maintain periodic contact with all individuals and agencies, public or private, providing care or related services to the ward.

    Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subdiv. (3): Substituted "probate division of the superior court" for "probate court".

Amendments--1989 (Adj. Sess.). Substituted "the office of" for "a" preceding "public guardian" and inserted "through its designees" thereafter in the introductory paragraph, substituted "a person interested in the welfare of the ward for purposes of filing a motion" for "an interested person for purposes of any motion filed" following "considered" in subdiv. (1), substituted "the office of" for "a" preceding "public guardian" and "a" for "his or her" following "visit with" in the third sentence and "the office, through its designees" for "a public guardian" preceding "shall maintain" in the fifth sentence of subdiv. (3) and made other minor stylistic changes throughout the section.

§ 3094. Duty to seek private guardian.

  1. Once appointed as guardian, the Office of Public Guardian shall make a reasonable effort to locate a suitable guardian for the ward from the private sector.  Annually, the Office of Public Guardian shall file a report with the Probate Division of the Superior Court describing its efforts to locate a private guardian for the ward.
  2. Upon location of a suitable private guardian, the Office of Public Guardian shall file a motion with the Probate Division of the Superior Court for termination or modification of the guardianship.  Availability of a suitable private guardian shall be deemed a change in the suitability of the Office of Public Guardian for carrying out its powers and duties under section 3077(a)(5) of this title.

    Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court".

Amendments--1989 (Adj. Sess.). Subsec. (a): Substituted "the office of" for "a" preceding "public guardian" in the first sentence and inserted "office of" following "annually, the" and substituted "its" for "his or her" following "describing" in the second sentence.

Subsec. (b): Inserted "office of" preceding "public guardian" in the first and second sentences and substituted "its" for "his or her" preceding "powers" in the second sentence.

§ 3095. Statistics to be maintained.

The Office of Public Guardian shall maintain annual statistics concerning the public guardianship program. The statistics shall include at least the following:

  1. The number of wards for which the Office of Public Guardian was appointed during the year for each planning service area served by the area agencies on aging.
  2. The dates on which the Office was appointed by the Probate Division of the Superior Court during the year.
  3. The number of guardianships carried over from the preceding year.
  4. The date of termination of each guardianship terminated during the period.
  5. The disposition of each guardianship terminated.

    Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 5; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. Reference to "office on aging" changed to "department of rehabilitation and aging" in view of Executive Order No. 70-89, which provided for the abolition of the office on aging and the transfer of the duties, responsibilities and authority of that entity to the department of rehabilitation and aging as established by the order. The order further provided for the redesignation of the exempt position of director of the office on aging as the commissioner of rehabilitation and aging. By its own terms, Executive Order No. 70-89 took effect on May 1, 1989, pursuant to section 2002 of Title 3. For the text of Executive Order No. 70-89, see chapter 1 of Title 3 Appendix.

Amendments--2009 (Adj. Sess.) Subdiv. (2): Substituted "probate division of the superior court" for "probate court".

Amendments--1989 (Adj. Sess.). Substituted "office of public guardian" for "department of rehabilitation and aging" preceding "shall maintain" in the first sentence of the introductory paragraph, "the office of" for "a" preceding "public guardian" in subdiv. (1) and "the office" for "a public guardian" preceding "was appointed" in subdiv. (2) and made other minor stylistic changes throughout the section.

§ 3096. Office of Public Guardian to offer assistance.

  1. The Office of Public Guardian may provide assistance to private guardians:
    1. To help them understand the disabilities of the person under guardianship.
    2. To help them foster increased independence on the part of the person under guardianship.
    3. With the preparation and revision of guardianship plans and reports.
    4. On ways to secure rights, benefits, and services to which the persons under guardianship are entitled.
  2. The Office shall:
    1. Develop public education programs on guardianship and alternatives to guardianship.
    2. Encourage individuals in the private sector to serve as guardians.
    3. Prepare and make available, at no charge, a booklet which describes the duties of a guardian.

      Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 6; 2013, No. 96 (Adj. Sess.), § 65.

History

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Substituted "the" for "their ward's" following "understand" and inserted "of the person under guardianship".

Subdiv. (a)(2): Substituted "the person under guardianship" for "their ward".

Subdiv. (a)(4): Substituted "the persons under guardianship" for "their wards" and made a minor stylistic change.

Amendments--1989 (Adj. Sess.). Substituted "office of public guardian" for "public guardianship program" in the section heading and in subsec. (a), deleted "and" following "reports" in subdiv. (a)(3), substituted "office" for "public guardianship program" preceding "shall" in subsec. (b), deleted "and" following "guardians" in subdiv. (b)(2) and made other minor stylistic changes throughout the section.

Subchapter 14. Special Immigration Status

§ 3098. Special immigration juvenile status; jurisdiction and findings.

  1. The court has jurisdiction under Vermont law to make judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act ( 8 U.S.C. § 1101(a) (27)(J) and 8 C.F.R. § 204.11). The court is authorized to make the findings necessary to enable a child to petition the U.S. Citizenship and Immigration Service for classification as a special immigrant juvenile pursuant to 8 U.S.C. § 1101(a) (27)(J).
    1. If an order is requested from the court making the necessary findings regarding special immigrant juvenile status as described in subsection (a) of this section, the court shall issue an order if there is evidence to support those findings, which may include a declaration by the child who is the subject of the petition. The order issued by the court shall include all of the following findings: (b) (1)  If an order is requested from the court making the necessary findings regarding special immigrant juvenile status as described in subsection (a) of this section, the court shall issue an order if there is evidence to support those findings, which may include a declaration by the child who is the subject of the petition. The order issued by the court shall include all of the following findings:
      1. The child was either of the following:
        1. Declared a dependent of the court.
        2. Legally committed to or placed under the custody of a State agency or department or an individual or entity appointed by the court. The court shall indicate the date on which the dependency, commitment, or custody was ordered.
      2. That reunification of the child with one or both of the child's parents was determined not to be viable because of abuse, neglect, abandonment, or a similar basis pursuant to Vermont law. The court shall indicate the date on which reunification was determined not to be viable.
      3. That it is not in the best interests of the child to be returned to the child's or his or her parent's previous country of nationality or country of last habitual residence.
    2. If requested by a party, the court may make additional findings that are supported by evidence.
  3. In any judicial proceedings in response to a request that the court make the findings necessary to support a petition for classification as a special immigrant juvenile, information regarding the child's immigration status that is not otherwise protected by State laws shall remain confidential. This information shall also be exempt from public inspection and copying under the Public Records Act and shall be kept confidential, except that the information shall be available for inspection by the court, the child who is the subject of the proceeding, the parties, the attorneys for the parties, the child's counsel, and the child's guardian.
  4. As used in this section, "court" means the Probate Division and the Family Division of the Superior Court.

    Added 2019, No. 167 (Adj. Sess.), § 29, eff. October 7, 2020.

CHAPTER 113. UNIFORM VETERANS' GUARDIANSHIP ACT

Sec.

History

Short title. V.S. 1947, § 3413, derived from 1943, No. 33 , § 20, provided that this chapter may be cited as the Uniform Veterans' Guardianship Act.

Severability of enactment. V.S. 1947, § 3409, derived from 1943, No. 33 , § 21, contained a separability provision applicable to this chapter.

§ 3101. Definitions.

As used in this chapter:

  1. "Administrator" means the administrator of the U.S. Veterans' Administration or his or her successor.
  2. "Benefits" means all monies paid or payable by the United States through the Veterans Administration.
  3. "Court" means any Probate Division of the Superior Court within this state for the district wherein the ward resides.
  4. "Estate" means income on hand and assets acquired partially or wholly with "income."
  5. "Guardian" means any fiduciary for the person or estate of a ward.
  6. "Income" means monies received from the Veterans' Administration and revenue or profit from any property wholly or partially acquired therewith.
  7. "Person" means an individual, a partnership, a corporation, or an association.
  8. "Veterans' Administration" means the Veterans' Administration, its predecessors or successors.
  9. "Ward" means a beneficiary of the Veterans' Administration.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3391. 1947, No. 202 , § 3413. 1943, No. 33 , § 1.

Revision note. Subdiv. designations added to conform section to V.S.A. style.

Amendments--2009 (Adj. Sess.) Subdiv. (3): Substituted "probate division of the superior court" for "probate court".

§ 3102. Administrator as party in interest.

The Administrator shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any present or former ward whose estate includes assets derived in whole or in part from benefits heretofore or hereafter paid by the Veterans' Administration. Not less than 15 days prior to hearing in such matter notice in writing of the time and place thereof shall be given by mail (unless waived in writing) to the office of the Veterans' Administration having jurisdiction over the area in which any such suit or any such proceeding is pending.

History

Source. V.S. 1947, § 3392. 1943, No. 33 , § 2.

§ 3103. Application.

Whenever, pursuant to any law of the United States or regulation of the Veterans' Administration, it is necessary, prior to payment of benefits, that a guardian be appointed, the appointment may be made in the manner hereinafter provided.

History

Source. V.S. 1947, § 3393. 1943, No. 33 , § 3.

§ 3104. Limitation on number of wards.

A person other than a bank or trust company, or the Executive Secretary of the State Veterans' Board acting under an appointment in that capacity pursuant to subdivision 3105(a)(3) of this title, shall not be guardian of more than five wards at one time, unless all the wards are members of one family. Upon presentation of a petition by an attorney of the Veterans' Administration or other interested person, alleging that a guardian is acting in a fiduciary capacity for more than five wards as herein provided and requesting his discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge him or her from guardianships in excess of five and forthwith appoint a successor.

History

Source. 1955, No. 6 , § 1. V.S. 1947, § 3394. 1943, No. 33 , § 4.

Editor's note. The reference in this section to the executive secretary of the state veterans' board is obsolete. Sections 1481 and 1482 of Title 20, relating to the state veterans' board, were repealed by 1959, No. 329 (Adj. Sess.), § 59, eff. March 1, 1961.

§ 3105. Appointment of guardian.

  1. A petition for the appointment of a guardian may be filed by:
    1. any relative or friend of the ward or by any person who is authorized by law to file such a petition; or
    2. if there is no person so authorized or if the person so authorized refuses or fails to file such a petition within 30 days after mailing of notice by the Veterans' Administration to the last known address of the persons, indicating the necessity for the same, by any resident of this State; or
    3. if the ward is a mentally incompetent veteran in a State institution, and no petition is filed within 60 days after the mailing of such notice, the Executive Secretary of the State Veterans' Board may file one praying that he or she, or his or her successor in office, in his or her official capacity, be appointed guardian.
  2. The petition for appointment shall set forth the name, age, place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that the ward is entitled to receive benefits payable by or through the Veterans' Administration and shall set forth the amount of monies then due and the amount of probable future payments.
  3. The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward and the name, age, relationship, if any, occupation, and address of the proposed guardian and if the nominee is a natural person, the number of wards for whom the nominee is presently acting as guardian.  Notwithstanding any law as to priority of persons entitled to appointment, or the nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian, if the court determines it is for the best interest of the ward.
  4. In the case of a mentally incompetent ward, the petition shall show that such ward has been rated incompetent by the Veterans' Administration on examination in accordance with the laws and regulations governing the Veterans' Administration.

History

Source. 1955, No. 6 , § 2. V.S. 1947, § 3395. 1943, No. 33 , § 5.

2002. In subdivs. (a)(1) and (a)(2), deleted a comma following "or" for purposes of clarity.

Editor's note. The reference in subdiv. (a)(3) of this section to the executive secretary of the state veterans' board is obsolete. Sections 1481 and 1482 of Title 20, relating to the state veterans' board, were repealed by 1959, No. 329 (Adj. Sess.), § 59, eff. March 1, 1961.

§ 3106. Evidence of necessity for guardian of infant.

Where a petition is filed for the appointment of a guardian for a minor, a certificate of the Administrator or his or her authorized representative, setting forth the age of such minor as shown by the records of the Veterans' Administration and the fact that the appointment of a guardian is a condition precedent to the payment of any monies due the minor by the Veterans' Administration shall be prima facie evidence of the necessity for such appointment.

History

Source. V.S. 1947, § 3396. 1943, No. 33 , § 6.

§ 3107. Evidence of necessity for guardian of incompetent.

Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the Administrator or his duly authorized representative, that such person has been rated incompetent by the veterans administration on examination in accordance with the laws and regulations governing such Veterans' Administration and that the appointment of a guardian is a condition precedent to the payment of any monies due such ward by the Veterans' Administration, shall be prima facie evidence of the necessity for such appointment.

History

Source. V.S. 1947, § 3397. 1943, No. 33 , § 7.

§ 3108. Notice.

Upon the filing of a petition for the appointment of a guardian under this chapter, notice shall be given to the ward, to such other persons, and in such manner as is provided by the general law of this State, and also to the Veterans' Administration as provided by this chapter.

History

Source. V.S. 1947, § 3398. 1943, No. 33 , § 8.

§ 3109. Bond.

  1. Upon the appointment of a guardian, he or she shall execute and file a bond to be approved by the court in an amount not less than the estimated value of the personal estate and anticipated income of the ward during the ensuing year.  The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship laws of this State. The court may, from time to time, require the guardian to file an additional bond.
  2. Where a bond is tendered by a guardian with personal sureties, there shall be at least two such sureties and they shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and shall state that each is worth the sum named in the bond as the penalty thereof over and above all his or her debts and liabilities and the aggregate of other bonds on which he or she is principal or surety and exclusive of property exempt from execution.  The court may require additional security or may require a corporate surety bond, the premium thereon to be paid from the ward's estate.

History

Source. V.S. 1947, § 3399. 1943, No. 33 , § 9.

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§ 3110. Petitions and accounts, notices and hearings.

  1. Every guardian who has received or shall receive on account of his ward any monies or other thing of value from the Veterans' Administration shall file with the court annually, on the anniversary date of the appointment, in addition to such other accounts as may be required by the court, a full, true, and accurate account under oath of all monies or other things of value so received by him or her, all earnings, interest, or profits derived therefrom and all property acquired therewith and of all disbursements therefrom, and showing the balance thereof in his or her hands at the date of the account and how invested.
  2. At the time of filing any account, the guardian shall exhibit all securities or investments held by him or her to an officer of the bank or other depository wherein such securities or investments are held for safekeeping or to an authorized representative of the corporation which is surety on his or her bond, or to the judge or clerk of a court of record in this state, or, upon request of the guardian or other interested party, to any other reputable person designated by the court, who shall certify in writing that he or she has examined the securities or investments and identified them with those described in the account, and shall note any omissions or discrepancies.  If the depository is the guardian, the certifying officer shall not be the officer verifying the account.  The guardian may exhibit the securities or investments to the judge of the court, who shall endorse on the account and copy thereof a certificate that the securities or investments shown therein as held by the guardian were each in fact exhibited to him or her and that those exhibited to him or her were the same as those shown in the account, and noting any omission or discrepancy.  That certificate and the certificate of an official of the bank in which are deposited any funds for which the guardian is accountable, showing the amount on deposit, shall be prepared and signed in duplicate and one of each shall be filed by the guardian with his account.
  3. At the time of filing any account in the court, a certified copy thereof and a signed duplicate of each certificate filed with the court shall be sent by the guardian to the office of the Veterans' Administration having jurisdiction over the area in which the court is located.  A signed duplicate or a certified copy of any petition, motion, or other pleading, pertaining to an account, or to any matter other than an account, and which is filed in the guardianship proceedings or in any proceeding for the purpose of removing the disability of minority or mental incapacity, shall be furnished by the person filing the same to the proper office of the Veterans' Administration.  Unless hearing be waived in writing by the attorney of the Veterans' Administration, and by all other persons, if any, entitled to notice, the court shall fix a time and place for the hearing on the account, petition, motion, or other pleading not less than 15 days nor more than 30 days from the date same is filed, unless a different available date be stipulated in writing.  Unless waived in writing, written notice of the time and place of hearing shall be given the Veterans' Administration office concerned and the guardian and any others entitled to notice not less than 15 days prior to the date fixed for the hearing.  The notice may be given by mail in which event it shall be deposited in the mails not less than 15 days prior to such date.  The court, or clerk thereof, shall mail to such Veterans' Administration office a copy of each order entered in any guardianship proceeding wherein the administrator is an interested party.
  4. If the guardian is accountable for property derived from sources other than the Veterans' Administration, he or she shall be accountable as is or may be required under the applicable law of this State pertaining to the property of minors or persons of unsound mind who are not beneficiaries of the Veterans' Administration, and as to such other property shall be entitled to the compensation provided by such law. The account for other property may be combined with the account filed in accordance with this section.

History

Source. V.S. 1947, § 3400. 1943, No. 33 , § 10.

§ 3111. Penalty for failure to account.

If a guardian fails to file with the court an account as required by this chapter, or by an order of the court, when an account is due or within 30 days after citation issues as provided by law, or fails to furnish the Veterans' Administration a true copy of an account, petition, or pleading as required by this chapter, such failure may, in the discretion of the court, be ground for his or her removal.

History

Source. V.S. 1947, § 3401. 1943, No. 33 , § 11.

§ 3112. Compensation of guardians.

Compensation payable to guardians shall be based upon services rendered and shall not exceed five percent of the amount of monies received during the period covered by the account. In the event of extraordinary services by a guardian, the court, upon petition and hearing thereon, may authorize reasonable additional compensation therefor. A copy of the petition and notice of hearing thereon shall be given the proper office of the Veterans' Administration in the manner provided in the case of hearing on a guardian's account or other pleading. No commission or compensation shall be allowed on the monies or other assets received from a prior guardian nor upon the amount received from liquidation of loans or other investments. The Executive Secretary of the State Veterans' Board shall not be entitled to any compensation in addition to his or her regular salary by reason of acting as guardian under an appointment pursuant to subdivision 3105(a)(3) of this title.

History

Source. 1955, No. 6 , § 3. V.S. 1947, § 3402. 1943, No. 33 , § 12.

Editor's note. The reference in this section to the executive secretary of the state veterans' board is obsolete. Sections 1481 and 1482 of Title 20, relating to the state veterans' board, were repealed by 1959, No. 329 (Adj. Sess.), § 59, eff. March 1, 1961.

§ 3113. Investments.

A guardian shall invest the surplus funds of his or her wards' estate in such securities or property as authorized under the laws of this State, but only upon prior order of the court; except that the funds may be invested, without prior court authorization, in direct unconditional interest bearing obligations of this State or of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States. A signed duplicate or certified copy of the petition for authority to invest shall be furnished the proper office of the Veterans' Administration, and notice of hearing thereon shall be given such office as provided in the case of hearing on the guardian's account.

History

Source. V.S. 1947, § 3403. 1943, No. 33 , § 13.

§ 3114. Maintenance and support.

A guardian shall not apply any portion of the income or the estate for the support or maintenance of any person other than the ward, the spouse and the minor children of the ward, except upon petition to and prior order of the court after a hearing. A signed duplicate or certified copy of such petition shall be furnished the proper office of the Veterans' Administration and notice of hearing thereon shall be given such office as provided in the case of hearing on a guardian's account or other pleading.

History

Source. V.S. 1947, § 3404. 1943, No. 33 , § 14.

§ 3115. Purchase of home for ward.

  1. The court may authorize the purchase of the entire fee simple title to real estate in this State in which the guardian has no interest, but only as a home for the ward, or to protect his or her interest, or (if he or she is not a minor) as a home for his or her dependent family.  Such purchase of real estate shall not be made except upon the entry of an order of the court after hearing upon verified petition.  A copy of the petition shall be furnished the proper office of the Veterans' Administration and notice of hearing thereon shall be given such office as provided in the case of hearing on a guardian's account.
  2. Before authorizing such investment, the court shall require written evidence of value and of title and of the advisability of acquiring such real estate.  Title shall be taken in the ward's name.  This section does not limit the right of the guardian on behalf of his or her ward to bid for and to become the purchaser of real estate at a sale thereof pursuant to decree of foreclosure of lien held by or for the ward, or at a trustee's sale, to protect the ward's right in the property so foreclosed or sold; nor does it limit the right of the guardian, if such be necessary to protect the ward's interest and upon prior order of the court in which the guardianship is pending, to agree with co-tenants of the ward for a partition in kind, or to purchase from co-tenants the entire undivided interests held by them, or to bid and purchase the same at a sale under a partition decree, or to compromise adverse claims of title to the ward's realty.

History

Source. V.S. 1947, § 3405. 1943, No. 33 , § 15.

§ 3116. Copies of public records to be furnished.

When a copy of a public record is required by the Veterans' Administration to be used in determining the eligibility of a person to participate in benefits made available by the Veterans' Administration, the official custodian of such public record shall, without charge, provide the applicant for such benefits or a person acting on his or her behalf or the authorized representative of the Veterans' Administration with a certified copy of such record.

History

Source. V.S. 1947, § 3406. 1943, No. 33 , § 16.

§ 3117. Discharge of guardian and release of sureties.

In addition to other provisions of law relating to judicial restoration and discharge of guardian, a certificate by the Veterans' Administration showing that a minor ward has attained majority, or that an incompetent ward has been rated competent by the Veterans' Administration, upon examination in accordance with law, shall be prima facie evidence that the ward has attained majority, or has recovered his or her competency. Upon hearing after notice as provided by this chapter and the determination by the court that the ward has attained majority or has recovered his or her competency, an order shall be entered to that effect, and the guardian shall file a final account. Upon hearing after notice to the former ward and to the Veterans' Administration, as in case of other accounts, upon approval of the final account, and upon delivery to the ward of the assets due him or her from the guardian, the guardian shall be discharged and his or her sureties released.

History

Source. V.S. 1947, § 3407. 1943, No. 33 , § 17.

§ 3118. Commitment to Veterans' Administration or other agency of U.S. government.

  1. Whenever, in a proceeding under the laws of this State for the commitment of a person alleged to be of unsound mind or otherwise in need of confinement in a hospital or other institution for his proper care, it is determined after such adjudication of the status of such person as may be required by law that commitment to a hospital for mental disease or other institution is necessary for safekeeping or treatment and it appears that such person is eligible for care or treatment by the Veterans' Administration or other agency of the U.S. government, the court, upon receipt of a certificate from the Veterans' Administration or such other agency showing that facilities are available and that such person is eligible for care or treatment there, may commit such person to such Veterans' Administration or other agency. The person whose commitment is sought shall be personally served with notice of the pending commitment proceeding in the manner as provided by the law of this State; and nothing in this chapter shall affect his right to appear and be heard in the proceedings. Upon commitment, when admitted to a facility operated by such agency within or without this State, such person shall be subject to the rules and regulations of the Veterans' Administration or other agency.  The chief officer of a facility of the Veterans' Administration or institution operated by another agency of the United States to which the person is so committed, with respect to such person, shall be vested with the same powers as superintendents of State hospitals for mental diseases within this State with respect to retention of custody, transfer, parole, or discharge. Jurisdiction is retained in the committing or other appropriate court of this State at any time to inquire into the mental condition of the person so committed, and to determine the necessity for continuance of his restraint, and all commitments pursuant to this chapter are so conditioned.
  2. The judgment or order of commitment by a court of competent jurisdiction of another state or of the District of Columbia, committing a person to the Veterans' Administration, or other agency of the U.S. government for care or treatment shall have the same force and effect as to the committed person while in this State as in the jurisdiction in which is situated the court entering the judgment or making the order; and the courts of the committing state, or of the District of Columbia, shall be deemed to have retained jurisdiction of the person so committed for the purpose of inquiring into the mental condition of such person, and of determining the necessity for continuance of his or her restraint; as is provided in subsection (a) of this section with respect to persons committed by the courts of this State.  Consent is hereby given to the application of the law of the committing state or district in respect to the authority of the chief officer of a facility of the Veterans' Administration, or of an institution operated in this State by another agency of the United States to retain custody, or transfer, parole, or discharge the committed person.
  3. Upon receipt of a certificate of the Veterans' Administration or such other agency of the United States that facilities are available for the care or treatment of a person heretofore committed to a hospital for the insane or other institution for the care or treatment of persons similarly afflicted and that such person is eligible for care or treatment, the superintendent of the institution may cause the transfer of such person to the Veterans' Administration or other agency of the United States for care or treatment.  Upon effecting such transfer, the committing court or proper officer thereof shall be notified thereof by the transferring agency.  A person shall not be transferred to the Veterans' Administration or other agency of the United States if he or she be confined pursuant to conviction of a felony or misdemeanor or if he or she has been acquitted of the charge solely on the ground of insanity, unless prior to transfer, the court or other authority originally committing such person shall enter an order for such transfer after appropriate motion and hearing.
  4. A person transferred as provided in this section shall be deemed to be committed to the Veterans' Administration or other agency of the United States pursuant to the original commitment.

History

Source. V.S. 1947, § 3408. 1943, No. 33 , § 18.

2002. Added the subsec. (d) designation to the formerly undesignated paragraph following subsec. (c) to conform section to V.S.A. style.

Revision note - In the first sentence of subsec. (b), substituted "subsection (a) of this section" for "subdivision (a) of this section" to conform reference to V.S.A. style.

§ 3119. Modification of prior laws.

Except where inconsistent with this chapter, the laws of this State relating to guardian and ward and the judicial practice relating thereto, including the right to trial by jury and the right of appeal, shall be applicable to such beneficiaries and their estates.

History

Source. V.S. 1947, § 3410. 1943, No. 33 , § 22.

§ 3120. Application of chapter.

The provisions of this chapter relating to surety bonds and the administration of estates of wards shall apply to all "income" and "estate" as defined in section 3101 of this title, whether the guardian shall have been appointed under this chapter or under any other law of this State, special or general, prior or subsequent to the enactment hereof.

History

Source. V.S. 1947, § 3411. 1943, No. 33 , § 23.

§ 3121. Liberal construction.

This chapter shall be so construed as to make uniform the law of those states which enact it.

History

Source. V.S. 1947, § 3412. 1943, No. 33 , § 19.

CHAPTER 114. UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. JURISDICTION

SUBCHAPTER 3. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

SUBCHAPTER 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES

SUBCHAPTER 5. MISCELLANEOUS PROVISIONS

Subchapter 1. General Provisions

§ 3151. Short title.

This chapter may be cited as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

Added 2011, No. 56 , § 25.

§ 3152. Definitions.

In this chapter:

  1. "Adult" means an individual who has attained 18 years of age.
  2. "Conservator" means a person appointed by the court to administer the property of an adult.
  3. "Guardian" means a person appointed by the court to make decisions regarding an adult, including a person appointed under this title.
  4. "Guardianship order" means an order appointing a guardian.
  5. "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
  6. "Incapacitated person" means an adult for whom a guardian has been appointed.
  7. "Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.
  8. "Person," except in the term "incapacitated person" or "protected person," means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  9. "Protected person" means an adult for whom a protective order has been issued.
  10. "Protective order" means an order appointing a conservator or other order related to the management of an adult's property.
  11. "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
  12. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  13. "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
  14. "State" means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

    Added 2011, No. 56 , § 25.

§ 3153. International application of act.

A court of this State may treat a foreign country as if it were a state for the purpose of applying this subchapter and subchapters 2, 3, and 5 of this chapter.

Added 2011, No. 56 , § 25.

§ 3154. Communication between courts.

  1. The Probate Division of the Superior Court in this State may communicate with a court in another state concerning a proceeding arising under this chapter. The Probate Division may allow the parties to participate in the communication. Except as otherwise provided in subsection (b) of this section, the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
  2. Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.

    Added 2011, No. 56 , § 25.

§ 3155. Cooperation between courts.

  1. In a guardianship or protective proceeding in this State, a court of this State may request the appropriate court of another state to do any of the following:
    1. hold an evidentiary hearing;
    2. order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
    3. order that an evaluation or assessment be made of the respondent;
    4. order any appropriate investigation of a person involved in a proceeding;
    5. forward to the court of this State a certified copy of the transcript or other record of a hearing under subdivision (1) of this subsection or any other proceeding, any evidence otherwise produced under subdivision (2) of this subsection, and any evaluation or assessment prepared in compliance with an order under subdivision (3) or (4) of this subsection;
    6. issue any order necessary to ensure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person;
    7. issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. Section 164.504, as amended, but any information so disclosed may be admitted in a proceeding in this State only in accordance with the laws of this State.
  2. If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (a) of this section, a court of this State has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request in accordance with the laws of this State.

    Added 2011, No. 56 , § 25.

§ 3156. Taking testimony in another state.

  1. In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this State for testimony taken in another state. The Probate Division of the Superior Court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
  2. In a guardianship or protective proceeding, a Probate Division of the Superior Court in this State may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. The Probate Division of this State shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
  3. Documentary evidence transmitted from another state to a Probate Division of the Superior Court of this State by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.

    Added 2011, No. 56 , § 25.

Subchapter 2. Jurisdiction

§ 3161. Definitions; significant connection factors.

  1. In this subchapter:
    1. "Emergency" means a circumstance that likely will result in serious and irreparable harm to a respondent's physical health, safety, or welfare, and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf.
    2. "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.
    3. "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.
  2. In determining under section 3163 and subsection 3171(e) of this title whether a respondent has a significant connection with a particular state, the Probate Division shall consider:
    1. the location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
    2. the length of time the respondent at any time was physically present in the state and the duration of any absence;
    3. the location of the respondent's property; and
    4. the extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, or receipt of services.

      Added 2011, No. 56 , § 25.

§ 3162. Exclusive basis.

This subchapter provides the exclusive jurisdictional basis for a Probate Division of the Superior Court of this State to appoint a guardian or issue a protective order for an adult. The Probate Division of the Superior Court shall have exclusive original jurisdiction to determine whether this State has jurisdiction pursuant to this subchapter.

Added 2011, No. 56 , § 25.

§ 3163. Jurisdiction.

A Probate Division of the Superior Court of this State has jurisdiction to appoint a guardian or issue a protective order for a respondent if:

  1. this State is the respondent's home state;
  2. on the date the petition is filed, this State is a significant-connection state and:
    1. the respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this State is a more appropriate forum; or
    2. the respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the Probate Division makes the appointment or issues the order:
      1. a petition for an appointment or order is not filed in the respondent's home state;
      2. an objection to the Probate Division's jurisdiction is not filed by a person required to be notified of the proceeding; and
      3. the Probate Division of the Superior Court in this State concludes that it is an appropriate forum under the factors set forth in section 3166 of this title;
  3. this State does not have jurisdiction under either subdivision (1) or (2) of this section, the respondent's home state, and all significant-connection states have declined to exercise jurisdiction because this State is the more appropriate forum, and jurisdiction in this State is consistent with the constitutions of this State and the United States; or
  4. the requirements for special jurisdiction under section 3164 of this title are met.

    Added 2011, No. 56 , § 25.

§ 3164. Special jurisdiction.

  1. A Probate Division of the Superior Court of this State lacking jurisdiction under section 3163 of this title has special jurisdiction to do any of the following:
    1. appoint a guardian in an emergency for a term not exceeding 90 days for a respondent who is physically present in this State;
    2. issue a protective order with respect to real or tangible personal property located in this State;
    3. appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to section 3171 of this title.
  2. If a petition for the appointment of a guardian in an emergency is brought in this State and this State was not the respondent's home state on the date the petition was filed, the Probate Division shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

    Added 2011, No. 56 , § 25.

§ 3165. Exclusive and continuing jurisdiction.

Except as otherwise provided in section 3164 of this title, a court that has appointed a guardian or issued a protective order consistent with this chapter has exclusive jurisdiction over the proceeding until jurisdiction is terminated by the Probate Division or the appointment or order expires by its own terms.

Added 2011, No. 56 , § 25.

History

2016. Substituted "chapter" for "act".

- 2014. Replaced "court" with "Division" pursuant to authority granted by 2009, No. 154 , § 236.

§ 3166. Appropriate forum.

  1. A Probate Division of the Superior Court of this State having jurisdiction under section 3163 of this title to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
  2. If a Probate Division of the Superior Court of this State declines to exercise its jurisdiction under subsection (a) of this section, it shall either dismiss or stay the proceeding. The Probate Division may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
  3. In determining whether it is an appropriate forum, the Probate Division shall consider all relevant factors, including:
    1. any expressed preference of the respondent;
    2. whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
    3. the length of time the respondent was physically present in or was a legal resident of this or another state;
    4. the distance of the respondent from the court in each state;
    5. the financial circumstances of the respondent's estate;
    6. the nature and location of the evidence;
    7. the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present evidence;
    8. the familiarity of the court of each state with the facts and issues in the proceeding; and
    9. if an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.

      Added 2011, No. 56 , § 25.

§ 3167. Jurisdiction declined by reason of conduct.

  1. If at any time a Probate Division of the Superior Court of this State determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
    1. decline to exercise jurisdiction;
    2. exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
    3. continue to exercise jurisdiction after considering:
      1. the extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the Probate Division's jurisdiction;
      2. whether it is a more appropriate forum than the court of any other state under the factors set forth in subsection 3166(c) of this title; and
      3. whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section 3163 of this title.
  2. If a Probate Division of the Superior Court of this State determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against the party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this State or a governmental subdivision, agency, or instrumentality of this State unless authorized by law other than this chapter.

    Added 2011, No. 56 , § 25.

§ 3168. Notice of proceeding.

If a petition for the appointment of a guardian or issuance of a protective order is brought in this State and this State was not the respondent's home state on the date the petition was filed, the petitioner shall comply with the notice requirements of this State and shall give notice of the petition to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice must be given in the same manner as notice is required to be given in this State.

Added 2011, No. 56 , § 25.

§ 3169. Proceedings in more than one state.

Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this State under subdivision 3164(a)(1) or (2) of this title, if a petition for the appointment of a guardian or issuance of a protective order is filed in this State and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

  1. If the Probate Division of the Superior Court in this State has jurisdiction under section 3163 of this title, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to section 3163 of this title before the appointment or issuance of the order.
  2. If the Probate Division of the Superior Court in this State does not have jurisdiction under section 3163 of this title, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the Probate Division shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the Probate Division in this State shall dismiss the petition unless the court in the other state determines that the Probate Division of the Superior Court in this State is a more appropriate forum.

    Added 2011, No. 56 , § 25.

Subchapter 3. Transfer of Guardianship or Conservatorship

§ 3171. Transfer of guardianship or conservatorship to another state.

  1. A guardian or conservator appointed in this State may petition the Probate Division of the Superior Court to transfer the guardianship or conservatorship to another state.
  2. Notice of a petition under subsection (a) of this section must be given to the persons that would be entitled to notice of a petition in this State for the appointment of a guardian or conservator.
  3. On the Probate Division's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on the petition filed pursuant to subsection (a) of this section.
  4. The Probate Division shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the Probate Division finds that:
    1. the incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
    2. an objection to the transfer has not been made or, if any objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and
    3. plans for care and services for the incapacitated person in the other state are reasonable and sufficient.
  5. The Probate Division shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
    1. the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in subsection 3161(b) of this chapter;
    2. an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
    3. adequate arrangements will be made for management of the protected person's property.
  6. The Probate Division shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
    1. a provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to section 3172 of this title; and
    2. the documents required to terminate a guardianship or conservatorship in this State.

      Added 2011, No. 56 , § 25.

§ 3172. Accepting guardianship transferred from another state.

  1. To confirm transfer of a guardianship or conservatorship transferred to this State under provisions similar to section 3171 of this title, the guardian or conservator must petition the Probate Division of the Superior Court in this State to accept the guardianship or conservatorship. The petition must also include a certified copy of the other state's provisional order of transfer.
  2. Notice of a petition under subsection (a) of this section must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this State. The notice must be given in the same manner as notice is required to be given in this State.
  3. On the Probate Division's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a) of this section.
  4. The Probate Division shall issue an order provisionally granting a petition filed under subsection (a) of this section unless:
    1. an objection is made, and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
    2. the guardian or conservator is ineligible for appointment in this State.
  5. The Probate Division shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian in this State upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to section 3171 of this title transferring the proceeding to this State.
  6. Not later than 90 days after issuance of a final order accepting transfer of a guardianship or conservatorship, the Probate Division shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this State.
  7. In granting a petition under this section, the Probate Division shall recognize a guardianship or conservatorship order from another state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.
  8. The denial by a Probate Division of the Superior Court of this State of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian in this State under this title if the Probate Division has jurisdiction to make an appointment other than by reason of the provisional order of transfer.

    Added 2011, No. 56 , § 25.

Subchapter 4. Registration and Recognition of Orders from Other States

§ 3181. Registration of guardianship orders.

If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this State, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this State by filing as a foreign judgment in a Probate Division of the Superior Court, in any appropriate county of this State, certified copies of the order and letters of office.

Added 2011, No. 56 , § 25.

§ 3182. Registration of protective orders.

If a conservator has been appointed in another state and a petition for a protective order is not pending in this State, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing as a foreign judgment in a Probate Division of the Superior Court of this State, in any county of this State in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.

Added 2011, No. 56 , § 25.

§ 3183. Effect of registration.

  1. Upon registration of a guardianship or protective order from another state, the guardian may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian is not a resident of this State, subject to any conditions imposed upon nonresident parties.
  2. A Probate Division of the Superior Court of this State may grant any relief available under this chapter and other law of this State to enforce a registered order.

    Added 2011, No. 56 , § 25.

§ 3184. Conveyance by guardian appointed by foreign jurisdiction.

  1. A conveyance of an interest in Vermont real property by a guardian appointed by a foreign court for a person 18 years of age or older is valid, provided that:
    1. the conveyance is authorized by a foreign court order; and
    2. the foreign order is registered in Vermont pursuant to this subchapter.
  2. For conveyances made prior to the May 4, 2017, no effect on marketability of title shall be created by either the failure to register the foreign order or the registration of the foreign order.

    Added 2017, No. 24 , § 5, eff. May 4, 2017.

Subchapter 5. Miscellaneous Provisions

§ 3191. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Added 2011, No. 56 , § 25.

§ 3192. Relation to electronic signatures in global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. § 7001(c) , or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. § 7003(b) .

Added 2011, No. 56 , § 25.

History

2016. Substituted "chapter" for "act".

§ 3193. Transitional provision.

  1. This chapter applies to guardianship and protective proceedings begun on or after July 1, 2011.
  2. Subchapters 1, 3, and 4 of this chapter and sections 3191 and 3192 of this title apply to proceedings begun before July 1, 2011, regardless of whether a guardianship or protective order has been issued.

    Added 2011, No. 56 , § 25.

History

2016. Substituted "chapter" for "act" in subsec. (a).

CHAPTER 115. VERMONT UNIFORM TRANSFERS TO MINORS ACT

Sec.

History

Amendments--2015. 2015, No. 7 , § 1, substituted "Transfers" for "Gifts" in the chapter heading.

Short title. 1957, No. 205 , § 10, provided that this chapter may be cited as the "Vermont Uniform Gifts to Minors Act".

Severability of enactment. 1957, No. 205 , § 11, contained a separability provision applicable to this chapter.

Prefatory Note

This Act revises and restates the Uniform Gifts to Minors Act (UGMA) some version of which has been enacted in every American jurisdiction.

The original version of UGMA was adopted by the National Conference of Commissioners on Uniform State Laws in 1956 and closely followed a model 'Act concerning Gifts of Securities to Minors' which was sponsored by the New York Stock Exchange and the Association of Stock Exchange Firms and which had been adopted in 14 states. The 1956 version of UGMA broadened the model act to cover gifts of money as well as securities but made few other changes.

In 1965 and 1966 the Conference revised UGMA to expand the types of financial institutions which could serve as depositories of custodial funds, to facilitate the designation of successor custodians, and to add life insurance policies and annuity contracts to the types of property (cash and securities) that could be made the subject of a gift under the Act.

Not all states adopted the 1966 revisions; some 11 jurisdictions retained their versions of the 1956 Act. More importantly, however, many states since 1966 have substantially revised their versions of UGMA to expand the kinds of property that may be made the subject of a gift under the Act, and a few states permit transfers to custodians from other sources, such as trusts and estates, as well as lifetime gifts. As a result, a great deal of non-uniformity has arisen among the states. Uniformity in this area is important, for the Conference has cited UGMA as an example of an act designed to avoid conflicts of law when the laws of more than one state may apply to a transaction or a series of transactions.

This Act follows the expansive approach taken by several states and allows any kind of property, real or personal, tangible or intangible, to be made the subject of a transfer to a custodian for the benefit of a minor (section 3211(4) of this chapter). In addition, it permits such transfers not only by lifetime outright gifts (section 3214), but also from trusts, estates and guardianships, whether or not specifically authorized in the governing instrument (sections 3215 and 3216), and from other third parties indebted to a minor who does not have a conservator, such as parties against whom a minor has a tort claim or judgment, and depository institutions holding deposits or insurance companies issuing policies payable on death to a minor (section 3217). For this reason, and to distinguish the enactment of this statute from the 1956 and 1966 versions of UGMA, the title of the Act has been changed to refer to "Transfers" rather than to "Gifts," a much narrower term.

As so expanded, the Act might be considered a statutory form of trust or guardianship that continues until the minor reaches 21. Note, however, that unlike a trust, a custodianship is not a separate legal entity or taxpayer. Under section 3221(b) of this chapter, the custodial property is indefeasibly vested in the minor, not the custodian, and thus any income received is attributable to and reportable by the minor, whether or not actually distributed to the minor.

The expansion of the Act to permit transfers of any kind of property to a custodian creates a significant problem of potential personal liability for the minor or the custodian arising from the ownership of property such as real estate, automobiles, general partnership interests, and business proprietorships. This problem did not exist under UGMA under which custodial property was limited to bank deposits, securities and insurance. In response, section 3227 of this Act generally limits the claims of third parties to recourse against the custodial property, with the minor insulated against personal liability unless he is personally at fault. The custodian is similarly insulated unless he is personally at fault or fails to disclose his custodial capacity in entering into a contract.

Nevertheless, the Act should be used with caution with respect to property such as real estate or general partnership interests from which liabilities as well as benefits may arise. Many of the possible risks can and should be insured against, and the custodian has the power under section 3223(a) of this chapter to purchase such insurance, at least when other custodial assets are sufficient to do so. If the assets are not sufficient, there is doubt that a custodian will act, or there are significant uninsurable risks, a transferor should consider a trust with spendthrift provisions, such as a minority trust under Section 2503(c) of the Internal Revenue Code, rather than a custodianship, to make a gift of such property to a minor.

The Act retains (or reverts to) 21 as the age of majority or, more accurately, the age at which the custodianship terminates and the property is distributed. Since tax law permits duration of Section 2503(c) trusts to 21, even though the statutory age of majority is 18 in most states, this age should be retained since most donors and other transferors wish to preserve a custodianship as long as possible.

Finally, the Act restates and rearranges, rather than amends, the 1966 Act. The addition of other forms of property and other forms of dispositions made adherence to the format and language of the prior act very unwieldy. In addition, the 1966 and 1956 Acts closely followed the language of the earlier model act, which had already been adopted in several states, even though it did not conform to Conference style. It is hoped that this rewriting and revision of UGMA will improve its clarity while also expanding its coverage.

§§ 3201-3209. Repealed. 2015, No. 7, § 2.

History

2015. 2015, No. 7 , § 2 provides: "To the extent that 14 V.S.A. chapter 115, by virtue of subsection 3232(b) of this title, does not apply to transfers made in a manner prescribed in the Vermont Uniform Gifts to Minors Act or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of the Vermont Uniform Gifts to Minors Act does not affect those transfers or those powers, duties, and immunities."

Former §§ 3201-3209. Former § 3201, relating to definitions, was derived from 1971, No. 90 , § 5 and amended by 1973, No. 133 (Adj. Sess.), §§ 1, 4; and 2009, No. 154 (Adj. Sess.), § 238a.

Former § 3202, relating to manner of making gifts, was derived from 1973, No. 133 (Adj. Sess.), § 5.

Former § 3203, relating to effect of gift, was derived from 1973, No. 133 (Adj. Sess.), § 2.

Former § 3204, relating to duties and powers of custodian, was derived from 1971, No. 90 , § 6 and amended by 1973, No. 133 (Adj. Sess.), § 6.

Former § 3205, relating to custodian's expenses, compensation, bond, and liabilities, was derived from 1957, No. 205 , § 5.

Former § 3206, relating to exemption of third persons from liability, was derived from 1957, No. 205 , § 6 and amended by 1973, No. 133 (Adj. Sess.), § 3.

Former § 3207, relating to resignation, death, or removal of custodian; bond; appointment of successor custodian, was derived from 1957, No. 205 , § 7 and amended by 1971, No. 90 , § 7.

Former § 3208, relating to accounting by custodian, was derived from 1957, No. 205 , § 8.

Former § 3209, relating to construction, was derived from 1957, No. 205 , § 9.

For present provisions see §§ 3211-3234 of this title.

Annotations From Former § 3201

1. Misuse of account.

Wife's alleged misuse of the funds in a Vermont Uniform Gift to Minors Act (VUGMA) account did not transform the child's property into the property of her parents. To the extent that wife violated her obligations as custodian on the account, the VUGMA provides a different remedy in a different forum. Wade v. Wade, 178 Vt. 189, 878 A.2d 303 (July 1, 2005).

Annotations From Former § 3202

1. Proof of gift .

Statements identifying an account as a Vermont Uniform Gift to Minors Act (VUGMA) account, naming wife as the account's custodian, and identifying the parties' child as the account holder, in addition to wife's testimony about the account, provided ample support for the court's findings that the account was created in accordance with the VUGMA. Wade v. Wade, 178 Vt. 189, 878 A.2d 303 (July 1, 2005).

Annotations From Former § 3203

1. Marital estate .

Because the funds in a Vermont Uniform Gift to Minors Act account are the child's property, they are not part of the marital estate subject to equitable distribution in a divorce proceeding. Wade v. Wade, 178 Vt. 189, 878 A.2d 303 (July 1, 2005).

§§ 3210. [Reserved for future use.].

As used in this chapter:

  1. "Adult" means an individual who has attained 21 years of age.
  2. "Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.
  3. "Court" means the Probate Division of the Superior Court.
  4. "Custodial property" means:
    1. any interest in property transferred to a custodian under this chapter; and
    2. the income from and proceeds of that interest in property.
  5. "Custodian" means a person so designated under section 3219 of this title or a successor or substitute custodian designated under section 3228 of this title.
  6. "Financial guardian" means a person who has been appointed by the Probate Division as financial guardian for a minor pursuant to section 2659 of this title, or a person legally authorized to perform substantially the same functions.
  7. "Financial institution" means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law.
  8. "Legal representative" means an individual's personal representative.
  9. "Member of the minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
  10. "Minor" means an individual who has not attained 21 years of age.
  11. "Person" means an individual, corporation, organization, or other legal entity.
  12. "Personal representative" means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
  13. "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
  14. "Transfer" means a transaction that creates custodial property under section 3219 of this title.
  15. "Transferor" means a person who makes a transfer under this chapter.
  16. "Trust company"' means a financial institution, corporation, or other legal entity authorized to exercise general trust powers.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

To reflect the broader scope and the unlimited types of property to which the new Act will apply, a number of definitional changes have been made from the 1966 Act. In addition, several definitions specifically applicable to the limited types of property (cash, securities and insurance policies) subject to the 1966 Act have been eliminated as unnecessary. These include the definitions of "bank," "issuer," "life insurance policy or annuity contract," "security," and "transfer agent." No change in the meaning or construction of these terms as used in this Act is intended by such deletions.

The definitions of "domestic financial institution" and 'insured financial institution' have been eliminated because few if any states limit deposits by custodians to local institutions, and the prudent person rule of section 3222(b) of this chapter may dictate the use of insured institutions as depositories, without having the Act so specify.

The principal changes or additions to the remaining definitions are discussed below.

Paragraph (2). The definition of "benefit plan" is intentionally very broad and is meant to cover any contract, plan, system, account or trust such as a pension plan, retirement plan, death benefit plan, deferred compensation plan, employment agency arrangement or, stock bonus, option or profit sharing plan.

Paragraph (4). The definition of "custodial property" has been generalized and expanded to encompass every conceivable legal or equitable interest in property of any kind, including real estate and tangible or intangible personal property. The term is intended, for example, to include joint interests with right of survivorship, beneficial interests in land trusts, as well as all other intangible interests in property. Contingent or expectancy interests such as the designation as a beneficiary under insurance policies or benefit plans become "custodial property" only if the designation is irrevocable, or when it becomes so, but the Act specifically authorizes the "nomination" of a future custodian as beneficiary of such interests (see section 3213 of this chapter). Proceeds of custodial property, both immediate and remote, are themselves custodial property, as is the case under UGMA.

Custodial property is defined without reference to the physical location of the property, even if it has one. No useful purpose would be served by restricting the application of the Act to, for example, real estate "located in this state," since a conveyance recorded in the state of the property's location, if done with proper formalities, should be effective even if that state has not enacted this Act. The rights, duties and powers of the custodian should be determined by reference to the law of the state under which the custodianship is created, assuming there is sufficient nexus under section 3212 of this chapter between that state and the transferor, the minor or the custodian.

Paragraph (10). This definition of "minor" retains the historical age of 21 as the age of majority, even though most states have lowered the age for most other purposes, as well as in their versions of the 1966 Act. Nevertheless, because the Internal Revenue Code continues to permit 'minority trusts' under Section 2503(c) of the Internal Revenue Code, to continue in effect until age 21, and because it is believed that most donors creating minority trusts or custodianships prefer to retain the property under management for the benefit of the young person as long as possible, it is strongly suggested that the age of 21 be retained as the age of majority under this Act.

Paragraph (12). The definition of the term "personal representative" is based upon that definition in Sec. 1-201(30) of the Uniform Probate Code.

Paragraph (14). The new definition of "transfer" is necessary to reflect the application of the Act not only to gifts, but also to distributions from trusts and estates, obligors of the minor, and transfers of the minor's own assets to a custodianship by the legal representative of a minor, all of which are now permitted by this Act.

Paragraph (15). The new definition of "transferor" is required because the term includes not only the maker of a gift, i.e., a donor in the usual sense, but also fiduciaries and obligors who control or own property that is the subject of the transfer. Nothing in this Act requires that a transferor be an "adult." If permitted under other law of the enacting state relating to emancipation or competence to make a will, gift, or other transfer, a minor may make an effective transfer of property to a custodian for his benefit or for the benefit of another minor.

Paragraph (16). Only entities authorized to exercise "general" trust powers qualify as "trust companies"; that is, the authority to exercise only limited fiduciary responsibilities, such as the authority to accept Individual Retirement Account deposits, is not sufficient.

§ 3212. Scope and jurisdiction.

  1. This chapter applies to a transfer that refers to this chapter in the designation under subsection 3219(a) of this title by which the transfer is made if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of this State or the custodial property is located in this State. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this State.
  2. A person designated as custodian under this chapter is subject to personal jurisdiction in this State with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state, and may be executed and is enforceable in this State if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state, or the custodial property is located in the designated state.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section has no counterpart in the 1966 Act. It attempts to resolve uncertainties and conflicts-of-laws questions that have frequently arisen because of the present non-uniformity of UGMA in the various states and which may continue to arise during the transition from UGMA to this Act.

The creation of a custodianship must invoke the law of a particular state because of the form of the transfer required under section 3219(a) of this chapter. This section provides that a choice of the UTMA of the enacting state is appropriate and effective if any of the nexus factors specified in subsection (a) exists at the time of the transfer. This Act continues to govern, and subsection (b) makes the custodian accountable and subject to personal jurisdiction in the courts of the enacting state for the duration of the custodianship, despite subsequent relocation of the parties or the property.

Subsection (c) recognizes that residents of the enacting state may elect to have the law of another state apply to a transfer. That choice is valid if a nexus with the chosen state exists at the time of the transfer. If personal jurisdiction can be obtained in the enacting state under other law apart from this Act, the custodianship may be enforced in its courts, which are directed to apply the law of the state elected by the transferor.

If the choice of law under subsection (a) or (c) is ineffective because of the absence of the required nexus, the transfer may still be effective under the Act of another state with which a nexus does exist. See section 3231 of this chapter.

§ 3213. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act." The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights that is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
  2. A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under subsection 3219(a) of this title.
  3. The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under section 3219 of this title. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event, the custodianship becomes effective, and the custodian shall enforce a transfer of the custodial property pursuant to section 3219 of this title.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section is new and permits a future custodian for a minor to be nominated to receive a distribution under a will or trust, or as a beneficiary of a power of appointment, or of contractual rights such as a life or endowment insurance policy, annuity contract, P.O.D. Account, benefit plan, or similar future payment right. Nomination of a future custodian does not constitute a "transfer" under this Act and does not create custodial property. If it did, the nomination and beneficiary designation would have to be permanent, since a "transfee" is irrevocable and indefeasibly vests ownership of the interest in the minor under section 3221(b) of this chapter.

Instead, this section permits a revocable beneficiary designation that takes effect only when the donor dies, or when a lifetime transfer to the custodian for the minor beneficiary occurs, such as a distribution under an inter vivos trust. However, an unrevoked nomination under this section is binding on a personal representative or trustee (see section 3215(b) of this chapter) and on insurance companies and other obligors who contract to pay in the future (see section 3217(b)).

The person making the nomination may name contingent or successive future custodians to serve, in the order named, in the event that the person first nominated dies, or is unable, declines, or is ineligible to serve. Such a substitute future custodian is a custodian "nominated . . . under Section 3213" to whom the transfer must be made under sections 3215(b) and 3217(b) of this chapter.

Any person nominated as future custodian may decline to serve before the transfer occurs and may resign at any time after the transfer. See section 3228 of this chapter.

§ 3214. Transfer by gift or exercise of power of appointment.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor, pursuant to section 3219 of this title.

Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

To emphasize the different kinds of transfers that create presently effective custodianships under this Act, they are separately described in sections 3214, 3215, 3216 and 3217 of this chapter. This section in part corresponds to Section 2(a) of the 1966 Act and covers the traditional lifetime gift that was the only kind of transfer authorized by the 1966 Act. It also covers an irrevocable exercise of a power of appointment in favor of a custodian, as distinguished from the exercise of a power in a revocable instrument that results only in the nomination of a future custodian under section 3213.

§ 3215. Transfer authorized by will or trust.

  1. A personal representative or trustee may make an irrevocable transfer pursuant to section 3219 of this title to a custodian for the benefit of a minor as authorized in the governing will or trust.
  2. If the testator or settlor has nominated a custodian under section 3213 of this title to receive the custodial property, the transfer must be made to that person.
  3. If the testator or settlor has not nominated a custodian under section 3213 of this title, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection 3219(a) of this title.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section is new and has no counterpart in the 1966 Act. It is based on nonuniform provisions adopted by Connecticut, Illinois, Wisconsin and other states to validate distributions from trusts and estates to a custodian for a minor beneficiary, when the use of a custodian is expressly authorized by the governing instrument. It also covers the designation of the custodian whenever the settlor or testator fails to make a nomination, or the future custodian nominated under section 3213 of this chapter (and any alternate named) fails to qualify.

§ 3216. Other transfer by fiduciary.

  1. Subject to subsection (c) of this section, a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor, pursuant to section 3219 of this title, in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection (c) of this section, a financial guardian may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor, pursuant to section 3219 of this title.
  3. A transfer under subsection (a) or (b) of this section may be made only if:
    1. the personal representative, trustee, or financial guardian considers the transfer to be in the best interest of the minor;
    2. the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument; and
    3. the transfer is authorized by the court if it exceeds $10,000.00 in value.

      Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section is new and has no counterpart in the 1966 Act. It covers a new concept, already authorized by the law of some states through nonuniform amendments to the 1966 Act, to permit custodianships to be used as guardianship or conservator substitutes, even though not specifically authorized by the person whose property is the subject of the transfer. It also permits the legal representative of the minor, such as a conservator or guardian, to transfer the minor's own property to a new or existing custodianship for the purposes of convenience or economies of administration.

A custodianship may be created under this section even though not specifically authorized by the transferor, the testator, or the settlor of the trust if three tests are satisfied. First, the fiduciary making the transfer must determine in good faith and in his fiduciary capacity that a custodianship will be in the best interests of the minor. Second, a custodianship may not be prohibited by, or inconsistent with, the terms of any governing instrument. Inconsistent terms would include, for example, a spendthrift clause in a governing trust, provisions terminating a governing trust for the minor's benefit at a time other than the time of the minor's age of majority, and provisions for mandatory distributions of income or principal at specific times or periodic intervals. Provisions for other outright distributions or bequests would not be inconsistent with the creation of a custodianship under this section. Third, the amount of property transferred (as measured by its value) must be of such relatively small amount that the lack of court supervision and the typically stricter investment standards that would apply to the conservator otherwise required will not be important. However, if the property is of significant size, transfer to a custodian may still be made if the court approves and if the other two tests are met.

The custodianship created under this section without express authority in the governing instrument will terminate upon the minor's attainment of the statutory age of majority of the enacting state apart from this Act, i.e., at the same age a conservatorship of the minor would end. See section 3220 of this chapter and the accompanying Comment.

§ 3217. Transfer by obligor.

  1. Subject to subsections (b) and (c) of this section, a person not subject to section 3215 or 3216 of this title who holds property of or owes a liquidated debt to a minor not having a financial guardian may make an irrevocable transfer to a custodian for the benefit of the minor, pursuant to section 3219 of this title.
  2. If a person having the right to do so under section 3213 of this title has nominated a custodian under that section to receive the custodial property, the transfer shall be made to that person.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section is new and, like section 3216 of this chapter, permits a custodianship to be established as a substitute for a conservator to receive payments due a minor from sources other than estates, trusts, and existing guardianships covered by sections 3215 and 3216. For example, a tort judgment debtor of a minor, a bank holding a joint or P.O.D. account of which a minor is the surviving payee, or an insurance company holding life insurance policy or benefit plan proceeds payable to a minor may create a custodianship under this section.

Use of this section is mandatory when a future custodian has been nominated under section 3213 of this chapter as a named beneficiary of an insurance policy, benefit plan, deposit account, or the like, because the original owner of the property specified a custodianship (and a future custodian) to receive the property. If that custodian (or any alternate named) is not available, if none was nominated, or none could have been nominated (as in the case of a tort judgment payable to the minor), this section is permissive and does not preclude the obligor from requiring the appointment of a conservator to receive payment. It allows the obligor to transfer to a custodian unless the property exceeds the stated value, in which case a conservator must be appointed to receive it.

§ 3218. Receipt for custodial property.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian, pursuant to this chapter.

Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section discharges transferors from further responsibility for custodial property delivered to and receipted for by the custodian. See also section 3226 of this chapter which protects transferors and other third parties dealing with custodians. Because a discharge or release for a donative transfer is not necessary, this section had no counterpart in the 1966 Act.

This section does not authorize an existing custodian, or a custodian to whom an obligor makes a transfer under section 3217 of this chapter, to settle or release a claim of the minor against a third party. Only a conservator, guardian ad litem or other person authorized under other law to act for the minor may release such a claim.

§ 3219. Manner of creating custodial property and effecting transfer; designation of initial custodian; control.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act"; or
      2. delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (b) of this section.
    2. Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act"; or
      2. assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
    4. An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
    5. An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
    6. A certificate of title issued by a department or agency of a state or of the United States that evidences title to tangible personal property is either:
      1. issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
      2. delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: "as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
    7. An interest in any property not described in subdivisions (1) through (6) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (b) of this section.
  2. An instrument in the following form satisfies the requirements of subdivisions (a)(1)(B) and (a)(7) of this section:
  3. A transferor shall place the custodian in control of the custodial property as soon as practicable.

    Added 2015, No. 7 , § 1.

"TRANSFER UNDER THE VERMONT

UNIFORM TRANSFERS TO MINORS ACT

I, ____________ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to __________ (name of custodian), as custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: ____________ __________________ (Signature) ____________ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Vermont Uniform Transfers to Minors Act. Dated: ____________ __________________ (Signature of Custodian)"

OFFICIAL COMMENT

The 1966 Act contained optional bracketed language permitting an adopting state to limit the class of eligible initial custodians to an adult member of the minor's family or a guardian of the minor. This optional limitation has been deleted because it would preclude the use of an individual and uncompensated custodian if no qualified or willing family member is available.

Otherwise, with respect to transfers of securities, cash, and insurance or annuity contracts, this section tracks the cognate provisions of subsection 2(a) of the 1966 Act, with one exception. Under subsection (a)(1)(ii) of this section, a transfer of securities in registered form may be accomplished without registering the transfer in the name of the custodian so that transfers may be accomplished more expeditiously, and so that securities may be held by custodians in street name. In other words, subsection (a)(1)(i) is not the exclusive manner for making effective transfers of securities in registered form.

In addition, subsection (a) creates new procedures for handling the additional types of property now subject to the Act; specifically:

Paragraph (3) covers the irrevocable transfer of ownership of life and endowment insurance policies and annuity contracts.

Paragraph (4) covers the irrevocable exercise of a power of appointment and the irrevocable present assignment of future payment rights, such as royalties, interest and principal payments under a promissory note, or beneficial interests under life or endowment or annuity insurance contracts or benefit plans. The payor, issuer, or obligor may require additional formalities such as completion of a specific assignment form and an endorsement, but the transfer is effective upon delivery of the notification. See section 3213 of this chapter and the accompanying Comment for the procedure for revocably "nominating" a future custodian as a beneficiary of a power of appointment or such payment rights.

Paragraph (5) is the exclusive method for the transfer of real estate and includes a disposition effected by will. Under the law of those states in which a devise of real estate vests in the devisee without the need for a deed from the personal representative of the decedent, a document such as the will must still be "recorded" under this provision to make the transfer effective. For inter vivos transfers, of course, a conveyance in recordable form would be employed for dispositions of real estate to a custodian.

Paragraph (6) covers the transfer of personal property such as automobiles, aircraft, patent rights, and other property subject to registration of ownership with a state or federal agency. Either registration of the transfer in the name of the custodian or delivery of the endorsed certificate in registerable form makes the transfer effective.

Paragraph (7) is a residual classification, covering all property not otherwise covered in the preceding paragraphs. Examples would include nonregistered securities, partnership interests, and tangible personal property not subject to title certificates.

The form of transfer document recommended and set forth in subsection (b) contains an acceptance that must be executed by the custodian to make the disposition effective. While such a form of written acceptance is not specifically required in the case of registered securities under subsection (a)(1), money under (a)(2), insurance contracts or interests under (a)(3) or (4), real estate under (a)(5), or titled personal property under (a)(6), it is certainly the better and recommended practice to obtain the acknowledgment, consent, and acceptance of the designated custodian on the instrument of transfer, or otherwise.

A transferor may create a custodianship by naming himself as custodian, except for transfers of securities under subsection (a)(1)(ii), insurance and annuity contracts under (a)(3)(ii), and titled personalty under (a)(6)(ii), which are made without registering them in the name of the custodian, and transfers of the residual class of property covered by (a)(7). In all of these cases a transfer of possession and control to a third party is necessary to establish donative intent and consummation of the transfer, and designation of the transferor as custodian renders the transfer invalid under section 3221(a)(2) of this chapter.

Note, also, that the Internal Revenue Service takes the position that custodial property is includable in the gross estate of the donor if the donor appoints himself or herself custodian and dies while serving in that capacity before the minor attains the age of 21. Rev. Rul. 57-366, C.B. 1957-2, 618; Rev. Rul. 59-357, C.B. 1959-2, 212; Rev. Rul. 70-348, C.B. 1970-2, 193; Estate of Prudowsky v. Comm'r, 55 T.C. 890 (1971), affd. per curiam, 465 F.2d 62 (7th Cir. 1972).

This Act has been drafted in an attempt to avoid income attribution to the parent or inclusion of custodial insurance policies on a custodian's life in the estate of the custodian through the changes made in the standards for expenditure of custodial property and the custodian's incidents of ownership in custodial property. See sections 3223 and 3224 of this chapter and the accompanying Comments. However, the much greater problem of inclusion of custodial property in the estate of the donor who serves as custodian remains. Therefore, despite the fact that this section of the Act permits it in the case of registered securities, money, life insurance, real estate, and personal property subject to titling laws, it is generally still inadvisable for a donor to appoint himself custodian or for a parent of the minor to serve as custodian. See, generally Sections 2036 and 2038 of the Internal Revenue Code and rulings and cases cited above; with respect to gifts of closely held stock when a donor retains voting rights by serving as custodian, see Section 2036(b) of the Internal Revenue Code, overruling U.S. v. Byrum, 408 U.S. 125 (1972), rehearing denied 409 U.S. 898.

Subsection (c) tracks in substance Section 2(c) of the 1966 Act. However, it replaces the requirement that the transferor "promptly do all things within his power" to complete the transfer, with the requirement that such action must be taken "as soon as practicable." This change is intended only to reflect the fact that possession and control of property transferred from an estate can rarely be accomplished with the immediacy that the term "promptly" may have implied. In the case of inter vivos transfers, no relaxation of the former requirement is intended, since "prompt" transfer of dominion is usually practicable.

§ 3220. Single custodianship.

A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.

Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

The first sentence follows Section 2(b) of the 1966 Act. The second sentence states what was implicit in the 1966 Act, that additional transfers at different times and from different sources may be made to an existing custodian for the minor and do not create multiple custodianships. This provision also permits an existing custodian to be named as successor custodian by another custodian for the same minor who resigns under section 3228 of this chapter for the purpose of consolidating the assets in a single custodianship.

Note, however, that these results are limited to transfers made "under this Act." Gifts previously made under the enacting state's UGMA or under the UGMA or UTMA of another state must be treated as separate custodianships, even though the same custodian and minor are involved, because of possible differences in the age of distribution and custodian's powers under those other Acts.

Even when all transfers to a single custodian are made "under this Act" and a single custodianship results, custodial property transferred under sections 3216 and 3217 of this chapter must be accounted for separately from property transferred under sections 3214 and 3215 because the custodianship will terminate sooner with respect to the former property if the enacting state has a statutory age of majority lower than 21. See section 3230 and the Comment thereto.

§ 3221. Validity and effect of transfer.

  1. The validity of a transfer made in a manner prescribed in this chapter is not affected by:
    1. failure of the transferor to comply with subsection 3219(c) of this title concerning possession and control;
    2. designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection 3219(a) of this title; or
    3. death or incapacity of a person nominated under section 3213 of this title or designated under section 3219 of this title as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to section 3219 of this title is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter, and the minor, the minor's legal representative, and the minor's financial guardian have no right, power, duty, or authority with respect to the custodial property except as provided in this chapter.
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter, and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

Subsection (a) generally tracks Section 2(c) of the 1966 Act, except that the transferor's designation of himself as custodian of property for which he is not eligible to serve under section 3219(a) of this chapter makes the transfer ineffective. See Comment to section 3219.

The balance of this section generally tracks Section 3 of the 1966 Act with a number of necessary, and perhaps significant, changes required by the new kinds of property subject to custodianships. The 1966 Act provides that a transfer made in accordance with its terms "conveys to the minor indefeasibly vested legal title to the [custodial property]." Because equitable interests in property may be the subject of a transfer under this Act, the reference to "legal title" has been deleted, but no change concerning the effect or finality of the transfer is intended.

However, subsection (b) qualifies the rights of the minor in the property by making them subject to "the rights, powers, duties and authority" of the custodian under this Act, a concept that may have been implicit and intended in the 1966 Act, but not expressed. The concept is important because of the kinds of property, particularly real estate, now subject to custodianship. If the minor is married, it would be possible for homestead, dower, or community property rights to attach to real estate (or other property) acquired after marriage by the minor through a transfer to a custodianship for his benefit. The quoted language qualifying the minor's interest in the property is intended to override these rights insofar as they may conflict with the custodian's ability and authority to manage, sell, or transfer such property while it is custodial property. Upon termination of the custodianship and transfer of the custodial property to the former minor, the custodial property would then become subject to such spousal rights for the first time.

For a list of the immunities enjoyed by third persons under subsection (c), see section 3226 of this chapter and the accompanying Comment.

Because a custodianship under this Act can extend beyond the age of majority in many states, or beyond emancipation of a minor through marriage or otherwise, the Drafting Committee considered the addition of a spendthrift clause to this section. The idea was rejected because neither the 1966 Act nor its predecessors had such a provision, because spendthrift protection would extend only until 21 in any event and judgments against the minor would then be enforceable, and because the spendthrift qualification on the interest of the minor in the property may be inconsistent with the theory of the Act to convey the property indefeasibly to the minor.

§ 3222. Care of custodial property.

  1. A custodian shall:
    1. take control of custodial property;
    2. register or record title to custodial property if appropriate; and
    3. collect, hold, manage, invest, and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on:
    1. the life of the minor only if the minor or the minor's estate is the sole beneficiary; or
    2. the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the irrevocable beneficiary.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered or held in an account designated in the name of the custodian, followed in substance by the words: "as a custodian for ________ (name of minor) under the Vermont Uniform Transfers to Minors Act."
  5. A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent, legal representative of the minor, financial guardian of the minor, or the minor if the minor has attained 14 years of age.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

Subsection (a) expands Section 4(a) of the 1966 Act to include the duties to take control and appropriately register or record custodial property in the name of the custodian.

Subsection (b) restates and makes somewhat stricter the prudent man fiduciary standard for the custodian, since it is now cast in terms of a prudent person "dealing with property of another" rather than one "who is seeking a reasonable income and the preservation of his capital," as under the 1966 Act. The rule also adds a slightly higher standard for professional fiduciaries. The rule parallels section 7 - 302 of the Uniform Probate Code in order to refer to the existing and growing body of law interpreting that standard. The 1966 Act permitted a custodian to retain any security or bank account received, without the obligation to diversify investment. This subsection extends that rule to any property received.

In order to eliminate any uncertainty that existed under the 1966 Act, subsection (c) grants specific authority to invest custodial property in life insurance on the minor's life, provided the minor's estate is the sole beneficiary, or on the life of another person in whom the minor has an insurable interest, provided the minor, the minor's estate, or the custodian in his or her custodial capacity is made the beneficiary of such policies.

Subsection (d) generally tracks Section 4(g) of the 1966 Act but adds the provision requiring that custodial property consisting of an undivided interest be held as a tenant in common. This provision permits the custodian to invest custodial property in common trust funds, mutual funds, or in a proportional interest in a "jumbo" certificate of deposit. Investment in property held in joint tenancy with right of survivorship is not permitted, but the Act does not preclude a transfer of such an interest to a custodian, and the custodian is authorized under subsection (b) to retain a joint tenancy interest so received.

Subsection (e) follows Section 4(h) of the 1966 Act, but adds the requirement that income tax information be maintained and made available for preparation of the minor's tax returns. Because the custodianship is not a separate legal entity or taxpayer, the minor's tax identification number should be used to identify all custodial property accounts.

§ 3223. Powers of custodian.

  1. A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
  2. This section does not relieve a custodian from liability for breach of section 3222 of this title.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

Subsection (a) replaces the specific list of custodian's powers in Section 4(f) of the 1966 Act which related only to securities, money, and insurance, then the only permitted kinds of custodial property. It was determined not to expand the list to try to deal with all forms of property now covered by the Act and to specify all powers that might be appropriate for each kind of property, or to refer to an existing body of state law, such as the Trustee's Powers Act, since such powers would not be uniform. Instead, this provision grants the custodian the very broad and general powers of an unmarried adult owner of the property, subject to the prudent person rule and to the duties of segregation and record keeping specified in section 3222 of this chapter. This approach permits the Act to be self-contained and more readily understandable by volunteer, non-professional fiduciaries, who most often serve as custodians. It is intended that the authority granted includes the powers most often suggested for custodians, such as the power to borrow, whether at interest or interest free, the power to invest in common trust funds, and the power to enter contracts that extend beyond the termination of the custodianship.

Subsection (a) further specifies that the custodian's powers or incidents of ownership in custodial property such as insurance policies may be exercised only in his capacity as custodian. This provision is intended to prevent the exercise of those powers for the direct or indirect benefit of the custodian, so as to avoid as nearly as possible the result that a custodian who dies while holding an insurance policy on his own life for the benefit of a minor will have the policy taxed in his or her estate. See, Section 2042 of the Internal Revenue Code; but compare Terriberry v. U.S., 517 F.2d 286 (5th Cir. 1975), and Rose v. U.S., 511 F.2d 259 (5th Cir. 1975).

§ 3224. Use of custodial property.

  1. A custodian may deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to:
    1. the duty or ability of the custodian personally or of any other person to support the minor; or
    2. any other income or property of the minor that may be applicable or available for that purpose.
  2. On petition of an interested person or the minor if the minor has attained 14 years of age, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  3. A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

Subsections (a) and (b) track subsections (b) and (c) of Section 4 of the 1966 Act, but with two significant changes. The standard for expenditure of custodial property has been amended to read "for the use and benefit of the minor," rather than 'for the support, maintenance, education and benefit of the minor' as specified under the 1966 Act. This change is intended to avoid the implication that the custodial property can be used only for the required support of the minor.

The IRS has taken the position that the income from custodial property, to the extent it is used for the support of the minor-donee, is includable in the gross income of any person who is legally obligated to support the minor-donee, whether or not that person or parent is serving as the custodian. Rev. Rul. 56-484, C.B. 1956-2, 23; Rev. Rul. 59-357, C.B. 1959-2, 212. However, Reg. 1.662(a)-4 provides that the term "legal obligation" includes a legal obligation to support another person if, and only if, the obligation is not affected by the adequacy of the dependent's own resources. Thus, if under local law a parent may use the resources of a child for the child's support in lieu of supporting the child himself or herself, no obligation of support exists, whether or not income is actually used for support, at least if the child's resources are adequate. See, Bittker, Federal Taxation of Income Estates and Gifts, Para. 80.4.4 (1981).

For this reason, new subsection (c) has been added to specify that distributions or expenditures may be made for the minor without regard to the duty or ability of any other person to support the minor and that distributions or expenditures are not in substitution for, and shall not affect, the obligation of any person to support the minor. Other possible methods of avoiding the attribution of custodial property income to the person obligated to support the minor would be to prohibit the use of custodial property or its income for that purpose, or to provide that any such use gives rise to a cause of action by the minor against his parent to the extent that custodial property or income is so used. The first alternative was rejected as too restrictive, and the second as too cumbersome.

The "use and benefit" standard in subsections (a) and (b) is intended to include payment of the minor's legally enforceable obligations such as tax or child support obligations or tort claims. Custodial property could be reached by levy of a judgment creditor in any event, so there is no reason not to permit custodian or court-ordered expenditures for enforceable claims.

An "interested person" entitled to seek court ordered distributions under subsection (b) would include not only the parent or conservator or guardian of the minor and a transferor or a transferor's legal representative, but also a public agency or official with custody of the minor and a third party to whom the minor owes legally enforceable debts.

§ 3225. Custodian's expenses, compensation, and bond.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
  2. Except for one who is a transferor under section 3214 of this title, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except as provided in subsection 3228(f) of this title, a custodian need not give a bond.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section parallels and restates Section 5 of the 1966 Act. It deletes the statement that a custodian may act without compensation for services, since that concept is implied in the retained provision that a custodian has an "election" to be compensated. However, to prevent abuse, the latter provision for permissive compensation is denied to a custodian who is also the donor of the custodial property.

The custodian's election to charge compensation must be exercised (although the compensation need not be actually paid) at least annually or it lapses and may not be exercised later. This provision is intended to avoid imputed income to the custodian who waives compensation, and also to avoid the accumulation of a large unanticipated claim for compensation exercisable at termination of the custodianship.

This section deletes as surplusage the bracketed optional standards contained in the 1966 Act for determining "reasonable compensation" which included, "in the order stated," a direction by the donor, statutes governing compensation of custodians or guardians, or court order. While compensation of custodians becomes a more likely occurrence and a more important issue under this Act because property requiring increased management may now be subject to custodianship, compensation can still be determined by agreement, by reference to a statute or by court order, without the need to so state in this Act.

§ 3226. Exemption of third person from liability.

A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:

  1. the validity of the purported custodian's designation;
  2. the propriety of or the authority under this chapter for any act of the purported custodian;
  3. the validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
  4. the propriety of the application of any property of the minor delivered to the purported custodian.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section carries forward, but shortens and simplifies, Section 6 of the 1966 Act, with no substantive change intended. The 1966 revision permitted a 14-year old minor to appoint a successor custodian and specifically provided that third parties were entitled to rely on the appointment. Because this section refers to any custodian, and "custodian" is defined to include successor custodians (section 3211(5) of this chapter), a successor custodian appointed by the minor is included among those upon whom third parties may rely.

Similarly, because this section protects any third "person," it is not necessary to specify here or in section 3221(c) of this chapter that it extends to any "issuer, transfer agent, bank, life insurance company, broker, or other person or financial institution," as did the 1966 Act. See the definition of "person" in section 3211(12).

This section excludes from its protection persons with "knowledge" of the irregularity of a transaction, a concept not expressed but probably implied in Section 6 of the 1966 Act. See, e.g., State ex rel Paden v. Currel, 597 S.W.2d 167 (Mo. App. 1980) (disapproving the pledge of custodial property to secure a personal loan to the custodian).

§ 3227. Liability to third persons.

  1. A claim based on any of the following may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor:
    1. a contract entered into by a custodian acting in a custodial capacity;
    2. an obligation arising from the ownership or control of custodial property; or
    3. a tort committed during the custodianship.
  2. A custodian is not personally liable:
    1. on a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
    2. for an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
  3. A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship, unless the minor is personally at fault.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section has no counterpart in the 1966 Act and is based upon Section 5-429 of the Uniform Probate Code, relating to limitations on the liability of conservators. Because some forms of custodial property now permitted under this Act can give rise to liabilities as well as benefits (e.g., general partnership interests, interests in real estate or business proprietorships, automobiles, etc.) the Committee believes it is necessary to protect the minor and other assets he or she might have or acquire from such liabilities, since the minor is unable to disclaim a transfer to a custodian for his benefit. Similar protection for the custodian is necessary so as not to discourage nonprofessional or uncompensated persons from accepting the office. Therefore this section generally limits the claims of third parties to recourse against the custodial property, as third parties dealing with a trust are generally limited to recourse against the trust corpus.

The custodian incurs personal liability only as provided in subsection (b) for actual fault or for failure to disclose his or her custodial capacity "in the contract" when contracting with third parties. In oral contracts, oral disclosure of the custodial capacity is sufficient. The minor, on the other hand, incurs personal liability under subsection (c) only for actual fault.

When custodial property is subjected to claims of third parties under this section, the minor or his or her legal representative, if not a party to the action by which the claim is successfully established, may seek to recover the loss from the custodian in a separate action. See section 3229 of this chapter and the accompanying Comment.

§ 3228. Renunciation, resignation, death, or removal of custodian; designation of successor custodian.

  1. A person nominated under section 3213 of this title or designated under section 3219 of this title as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under section 3213 of this title, the person who made the nomination may nominate a substitute custodian under section 3213 of this title; otherwise, the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under subsection 3219(a) of this title. The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under section 3214 of this title as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
  3. A custodian may resign at any time by delivering written notice to the minor if the minor has attained 14 years of age and to the successor custodian, and by delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor, and the minor has attained 14 years of age, the minor may designate as successor custodian, in the manner prescribed in subsection (b) of this section, an adult member of the minor's family, a financial guardian of the minor, or a trust company. If the minor has not attained 14 years of age or fails to act within 60 days after the ineligibility, death, or incapacity, the financial guardian of the minor becomes successor custodian. If the minor has no financial guardian or the financial guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection (a) of this section or resigns under subsection (c) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor's family, the minor's financial guardian, a guardian of the minor appointed pursuant to section 2628 or 2664 of this title, or the minor if the minor has attained 14 years of age may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under section 3214 of this title or to require the custodian to give appropriate bond.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section tracks but condenses Section 7 of the 1966 Act to provide that the custodian, or if the custodian does not do so, the minor if he or she is 14, may appoint the successor custodian, or failing that, that the conservator of the minor or a court appointee shall serve. It also covers disclaimer of the office by designated or successor custodians or by nominated future custodians who decline to serve.

This Act broadens the category of persons who may be designated by the initial custodian as successor custodian from an adult member of the minor's family, his or her conservator, or a trust company to any adult or trust company. However, the minor's designation remains limited to an adult member of his family (expanded to include a spouse and a stepparent, see section 3211(9) of this chapter), the minor's conservator, or a trust company.

§ 3229. Accounting by and determination of liability of custodian.

  1. A minor who has attained 14 years of age, the minor's financial guardian or legal representative, a guardian of the minor appointed pursuant to section 2628 or 2664 of this title, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court:
    1. for an accounting by the custodian or the custodian's legal representative; or
    2. for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under section 3227 of this title to which the minor, the minor's legal representative, or the minor's financial guardian was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
  4. If a custodian is removed under subsection 3228(f) of this title, the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section carries forward Section 8 of the 1966 Act, but expands the class of parties who may require an accounting by the custodian to include any person who made a transfer to him or her (or any such person's legal representative), the minor's guardian of the person, and the successor custodian.

Subsection (b) authorizes but does not obligate a successor custodian to seek an accounting by the predecessor custodian. Since the minor and other persons mentioned in subsection (a) may also seek an accounting from the predecessor at any time, it is anticipated that the exercise of this right by the successor should be rare.

Subsection (a) also gives the same parties (other than a successor custodian) the right to seek recovery from the custodian for loss or diminution of custodial property resulting from successful claims by third persons under section 3227 of this chapter, unless that issue has already been adjudicated in an action under that section to which the minor was a party.

This section does not contain a separate statute of limitations precluding petitions for accounting after termination of the custodianship. Because custodianships can be created without the knowledge of the minor, a person might learn of a custodian's failure to turn over custodial property long after reaching majority, and should not be precluded from asserting his rights in the case of such fraud. In addition, the 1966 Act has no such preclusion and seems to have worked well. Other law, such as general statutes of limitation and the doctrine of laches, should serve adequately to protect former custodians from harassment.

§ 3230. Termination of custodianship.

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earliest of:

  1. the minor's attainment of 21 years of age with respect to custodial property transferred under section 3214 or 3215 of this title;
  2. the minor's attainment of 18 years of age with respect to custodial property transferred under section 3216 or 3217 of this title; or
  3. the minor's death.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section tracks Section 4(d) of the 1966 Act, but provides that custodianships created by fiduciaries without express authority from the donor of the property under section 3216 of this chapter and by obligors of the minor under section 3217 terminate upon the minor's attaining the age of majority under the general laws of the state, since these custodianships are substitutes for conservatorships that would otherwise terminate at that time. Because property in a single custodianship may be distributable at different times, separate accounting for custodial property by source may be required. See Comment to section 3220.

§ 3231. Applicability.

This chapter applies to a transfer within the scope of section 3212 of this title made after its effective date if:

  1. the transfer purports to have been made under the Vermont Uniform Gifts to Minors Act; or
  2. the instrument by which the transfer purports to have been made uses in substance the designation "as custodian under the Uniform Gifts to Minors Act" or "as custodian under the Uniform Transfers to Minors Act" of any other state, and the application of this chapter is necessary to validate the transfer.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

This section is new and has two purposes. First, it operates as a "savings clause" to validate transfers made after its effective date which mistakenly refer to the enacting state's UGMA rather than to this Act. Second, it validates transfers attempted under the UGMA of another state which would not permit transfers from that source or of property of that kind or under the UTMA of another state with no nexus to the transaction, provided in each case that the enacting state has a sufficient nexus to the transaction under section 3212 of this chapter.

§ 3232. Effect on existing custodianships.

  1. Any transfer of custodial property as now defined in this chapter made before July 1, 2015 is validated, notwithstanding that there was no specific authority in the Vermont Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. This chapter applies to all transfers made before July 1, 2015 in a manner and form prescribed in the Vermont Uniform Gifts to Minors Act, except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 15, 2015.

    Added 2015, No. 7 , § 1.

OFFICIAL COMMENT

Subsection (a) is new and is based on Section 45-109a of the Connecticut Act which validates gifts of real estate and partnership interests made prior to their inclusion as "custodial property" under that Act. However, this provision goes further and purports also to validate prior transfers of the kind now covered by the Act, i.e., transfers from estates, trusts, guardianships, and obligors.

All states have previously enacted some version of UGMA, and it will be more orderly to subject gifts or other transfers under the prior Act to the procedures of this Act, rather than to keep both Acts in force, presumably for 18 or 21 years until all custodianships created under prior law have terminated. Subsection (b) is intended to apply this Act to prior gifts and existing custodianships insofar as it is constitutionally permissible to do so. However, prior custodianships will continue to terminate at the age prescribed under the prior Act.

§ 3233. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

Added 2015, No. 7 , § 1.

§ 3234. Severability.

If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, provisions of this chapter are severable.

Added 2015, No. 7 , § 1.

§ 3211. Definitions.

CHAPTER 117. UNIFORM PRINCIPAL AND INCOME ACT [REPEALED]

Sec.

History

Application. 1957, No. 171 , § 15, provided that this chapter would apply to all estates of tenants or remaindermen which became legally effective after June 1, 1957.

Short title. 1957, No. 171 , § 14, provided that this chapter may be cited as the Uniform Principal and Income Act.

Repeal of chapter. Chapter 117 was repealed by 2011, No. 114 (Adj. Sess.) and substantially re-enacted in Chapter 118 of this title.

Effective date; applicability to existing trusts and estates. 2011, No. 114 (Adj. Sess.) § 3 provides that: "This act [which repealed this chapter] shall take effect on July 1, 2012 and shall apply to every trust or decedent's estate existing on July 1, 2012 except as otherwise expressly provided in the will or terms of the trust or in this act."

§§ 3301-3314. Repealed. 2011, No. 114 (Adj. Sess.), § 2.

History

Former Chapter 117. Former Chapter 117 consisting of §§ 3301-3314, relating to the Uniform Principal and Income Act, was repealed by 2011, No. 114 (Adj. Sess.), § 2. For present provisions, see §§ 3321-3376 of Chapter 118 of this title.

Former §§ 3301-3314. Former § 3301, relating to definition of terms, was derived from 1957, No. 171 , § 1.

Former § 3302, relating to application of chapter and powers of settlor, was derived from 1957, No. 171 , § 2.

Former § 3303, relating to disposition of income and principal, was derived from 1957, No. 171 , § 3.

Former § 3304, relating to disposition of probate income by executors and testamentary trustees, was derived from 1959, No. 159 .

Former § 3305, relating to apportionment of income, was derived from 1957, No. 171 , § 4.

Former § 3306, relating to corporate dividends and share rights, was derived from 1957, No. 171 , § 5.

Former § 3307, relating to premiums and discount bonds, was derived from 1957, No. 171 , § 6.

Former § 3308, relating to principal used in business, was derived from 1957, No. 171 , § 7.

Former § 3309, relating to principal comprising animals, was derived from 1957, No. 171 , § 8.

Former § 3310, relating to disposition of natural resources, was derived from 1957, No. 171 , § 9.

Former § 3311, relating to principal subject to depletion, was derived from 1957, No. 171 , § 10.

Former § 3312, relating to an unproductive estate, was derived from 1957, No. 171 , § 11.

Former § 3313, relating to trust estates and expenses, was derived from 1957, No. 171 , § 12.

Former § 3314, relating to expenses and nontrust estates, was derived from 1957, No. 171 , § 13.

Annotations From Former § 3304

1. Income from widow's statutory share.

Income from the statutory share of a widow, who, under provisions of section 402 of this title, elected to take against will, belonged to her from moment her right to the personalty became choate, and it was not available for distribution as "net probate income" under this section. In re Estate of Hurlbut, 126 Vt. 562, 238 A.2d 68 (1967).

Annotations From Former § 3306

1. Stock dividends charged to capital surplus.

Stock dividend, occurring in 1959, in connection with a trust established prior to passage of this chapter, which was charged entirely against capital surplus and not against earned surplus, should be treated as corpus rather than income. In re Estate of Valiquette, 122 Vt. 362, 173 A.2d 832 (1961).

CHAPTER 118. UNIFORM PRINCIPAL AND INCOME ACT

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. DECEDENT'S ESTATE OR TERMINATING INCOME INTEREST

SUBCHAPTER 3. APPORTIONMENT AT BEGINNING AND END OF INCOME INTEREST

SUBCHAPTER 4. ALLOCATION OF RECEIPTS DURING ADMINISTRATION OF TRUST

SUBCHAPTER 5. ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF TRUST

History

Effective date; applicability to existing trusts and estates. 2011, No. 114 (Adj. Sess.) § 3 provides that: "This act [which enacted this chapter] shall take effect on July 1, 2012 and shall apply to every trust or decedent's estate existing on July 1, 2012 except as otherwise expressly provided in the will or terms of the trust or in this act."

Subchapter 1. General Provisions

§ 3321. Short title.

This subchapter may be cited as the Uniform Principal and Income Act.

Added 2011, No. 114 (Adj. Sess.), § 1.

§ 3322. Definitions.

As used in this chapter:

  1. "Accounting period" means a calendar year unless another 12-month period is selected by a fiduciary. The term includes a portion of a calendar year or other 12-month period that begins when an income interest begins or ends when an income interest ends.
  2. "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
  3. "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor, personal representative, special administrator, and a person performing substantially the same function.
  4. "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in subchapter 4 of this chapter.
  5. "Income beneficiary" means a person to whom net income of a trust is or may be payable.
  6. "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.
  7. "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
  8. "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period.
  9. "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
  10. "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates.
  11. "Remainder beneficiary" means a person entitled to receive principal when an income interest ends.
  12. "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
  13. "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

"Income beneficiary." The definitions of income beneficiary (subdivision 3322(5)) and income interest (subdivision 3322(6)) cover both mandatory and discretionary beneficiaries and interests. There are no definitions for "discretionary income beneficiary" or "discretionary income interest" because those terms are not used in the Act.

Inventory value. There is no definition for inventory value in this Act because the provisions in which that term was used in the 1962 Act have either been eliminated (in the case of the underproductive property provision) or changed in a way that eliminates the need for the term (in the case of bonds and other money obligations, property subject to depletion, and the method for determining entitlement to income distributed from a probate estate).

"Net income." The reference to "transfers under this Act to or from income" means transfers made under subsections 3324(a), 3362(b), 3372(b), 3373(b), 3374(a), and section 3376.

"Terms of trust." This term was chosen in preference to "terms of the trust instrument" (the phrase used in the 1962 Act) to make it clear that the Act applies to oral trusts as well as those whose terms are expressed in written documents. The definition is based on the Restatement (Second) of Trusts § 4 (1959) and the Restatement (Third) of Trusts § 4 (Tent. Draft No. 1, 1996). Constructional preferences or rules would also apply, if necessary, to determine the terms of the trust.

§ 3323. Fiduciary duties; general principles.

  1. In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of subchapter 2 or 3 of this chapter, a fiduciary:
    1. shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter;
    2. may administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter;
    3. shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
    4. shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.
  2. In exercising the power to adjust under subsection 3324(a) of this title or a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Act. The rule in Section 2(a) of the 1962 Act is restated in subsection 3323(a), without changing its substance, to emphasize that the Act contains only default rules and that provisions in the terms of the trust are paramount. However, Section 2(a) of the 1962 Act applies only to the allocation of receipts and disbursements to or between principal and income. In this Act, the first sentence of subsection 3323(a) states that it also applies to matters within the scope of subchapters 2 and 3. Subdivision 3323(a)(2) incorporates the rule in Section 2(b) of the 1962 Act that a discretionary allocation made by the trustee that is contrary to a rule in the Act should not give rise to an inference of imprudence or partiality by the trustee.

The Act deletes the language that appears at the end of Section (2)(a)(3)(B) of the 1962 Act ("and in view of the manner in which men of ordinary prudence, discretion and judgment would act in the management of their affairs") because persons of ordinary prudence, discretion and judgment, acting in the management of their own affairs do not normally think in terms of the interests of successive beneficiaries. If there is an analogy to an individual's decision making process, it is probably the individual's decision to spend or to save, but this is not a useful guideline for trust administration. No case has been found in which a court has relied on the "prudent man" rule of the 1962 Act.

Fiduciary discretion. The general rule is that if a discretionary power is conferred upon a trustee, the exercise of that power is not subject to control by a court except to prevent an abuse of discretion. Restatement (Second) of Trusts § 187. The situations in which a court will control the exercise of a trustee's discretion are discussed in the comments to § 187. See also, id. at § 233, comment p.

Questions for which there is no provision. Subdivision 3323(a)(4) allocates receipts and disbursements to principal when there is no provision for a different allocation in the terms of the trust, the will, or the Act. This may occur because money is received from a financial instrument not available at the present time (inflation-indexed bonds might have fallen into this category had they been announced after this Act was approved by the Commissioners on Uniform State Laws) or because a transaction is of a type or occurs in a manner not anticipated by the Drafting Committee for this Act or the drafter of the trust instrument.

Allocating to principal a disbursement for which there is no provision in the Act or the terms of the trust preserves the income beneficiary's level of income in the year it is allocated to principal, but thereafter will reduce the amount of income produced by the principal. Allocating to principal a receipt for which there is no provision will increase the income received by the income beneficiary in subsequent years, and will eventually, upon termination of the trust, also favor the remainder beneficiary. Allocating these items to principal implements the rule that requires a trustee to administer the trust impartially, based on what is fair and reasonable to both income and remainder beneficiaries. However, if the trustee decides that an adjustment between principal and income is needed to enable the trustee to comply with subsection 3323(b), after considering the return from the portfolio as a whole, the trustee may make an appropriate adjustment under subsection 3324(a).

Duty of impartiality. Whenever there are two or more beneficiaries, a trustee is under a duty to deal impartially with them. Restatement of Trusts 3d: Prudent Investor Rule § 183 (1992). This rule applies whether the beneficiaries' interests in the trust are concurrent or successive. If the terms of the trust give the trustee discretion to favor one beneficiary over another, a court will not control the exercise of such discretion except to prevent the trustee from abusing it. Id. at § 183, comment a. "The precise meaning of the trustee's duty of impartiality and the balancing of competing interests and objectives inevitably are matters of judgment and interpretation. Thus, the duty and balancing are affected by the purposes, terms, distribution requirements, and other circumstances of the trust, not only at the outset but as they may change from time to time." Id. at § 232, comment c.

The terms of a trust may provide that the trustee, or an accountant engaged by the trustee, or a committee of persons who may be family members or business associates, shall have the power to determine what is income and what is principal. If the terms of a trust provide that this Act specifically or principal and income legislation in general does not apply to the trust but fail to provide a rule to deal with a matter provided for in this Act, the trustee has an implied grant of discretion to decide the question. Subsection 3323(b) provides that the rule of impartiality applies in the exercise of such a discretionary power to the extent that the terms of the trust do not provide that one or more of the beneficiaries are to be favored. The fact that a person is named an income beneficiary or a remainder beneficiary is not by itself an indication of partiality for that beneficiary.

§ 3324. Trustee's power to adjust.

  1. A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the rules in subsection 3323(a) of this title, that the trustee is unable to comply with subsection 3323(b) of this title.
  2. In deciding whether and to what extent to exercise the power conferred by subsection (a) of this section, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:
    1. the nature, purpose, and expected duration of the trust;
    2. the intent of the settler;
    3. the identity and circumstances of the beneficiaries;
    4. the needs for liquidity, regularity of income, and preservation and appreciation of capital;
    5. the assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor;
    6. the net amount allocated to income under the other sections of this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
    7. whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
    8. the actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
    9. the anticipated tax consequences of an adjustment.
  3. A trustee may not make an adjustment:
    1. that diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;
    2. that reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
    3. that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
    4. from any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
    5. if possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;
    6. if possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment;
    7. if the trustee is a beneficiary of the trust; or
    8. if the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly.
  4. If subdivision (c)(5), (6), (7), or (8) of this section applies to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.
  5. A trustee may release the entire power conferred by subsection (a) of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause one of the results described in subdivisions (c)(1)-(6) or (c)(8) of this section or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual.
  6. Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (a) of this section.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Purpose and Scope of Provision. The purpose of section 3324 is to enable a trustee to select investments using the standards of a prudent investor without having to realize a particular portion of the portfolio's total return in the form of traditional trust accounting income such as interest, dividends, and rents. Subsection 3324(a) authorizes a trustee to make adjustments between principal and income if three conditions are met: (1) the trustee must be managing the trust assets under the prudent investor rule; (2) the terms of the trust must express the income beneficiary's distribution rights in terms of the right to receive "income" in the sense of traditional trust accounting income; and (3) the trustee must determine, after applying the rules in subsection 3323(a), that he is unable to comply with subsection 3323(b). In deciding whether and to what extent to exercise the power to adjust, the trustee is required to consider the factors described in subsection 3324(b), but the trustee may not make an adjustment in circumstances described in subsection 3324(c).

Section 3324 does not empower a trustee to increase or decrease the degree of beneficial enjoyment to which a beneficiary is entitled under the terms of the trust; rather, it authorizes the trustee to make adjustments between principal and income that may be necessary if the income component of a portfolio's total return is too small or too large because of investment decisions made by the trustee under the prudent investor rule. The paramount consideration in applying subsection 3324(a) is the requirement in subsection 3323(b) that "a fiduciary must administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries." The power to adjust is subject to control by the court to prevent an abuse of discretion. Restatement (Second) of Trusts § 187 (1959). See also, id. at §§ 183, 232, 233, comment p (1959).

Section 3324 will be important for trusts that are irrevocable when a state adopts the prudent investor rule by statute or judicial approval of the rule contained in the Restatement of Trusts 3d: Prudent Investor Rule. Wills and trust instruments executed after the rule is adopted can be drafted to describe a beneficiary's distribution rights in terms that do not depend upon the amount of trust accounting income, but to the extent that drafters of trust documents continue to describe an income beneficiary's distribution rights by referring to trust accounting income, Section 3324 will be an important tool in trust administration.

Three conditions to the exercise of the power to adjust. The first of the three conditions that must be met before a trustee can exercise the power to adjust - that the trustee invest and manage trust assets as a prudent investor - is expressed in this Act by language derived from the Uniform Prudent Investor Act, but the condition will be met whether the prudent investor rule applies because the Uniform Act or other prudent investor legislation has been enacted, the prudent investor rule has been approved by the courts, or the terms of the trust require it. Even if a state's legislature or courts have not formally adopted the rule, the Restatement establishes the prudent investor rule as an authoritative interpretation of the common law prudent man rule, referring to the prudent investor rule as a "modest reformulation of the Harvard College dictum and the basic rule of prior Restatements." Restatement of Trusts 3d: Prudent Investor Rule, Introduction, at 5. As a result, there is a basis for concluding that the first condition is satisfied in virtually all states except those in which a trustee is permitted to invest only in assets set forth in a statutory "legal list."

The second condition will be met when the terms of the trust require all of the "income" to be distributed at regular intervals; or when the terms of the trust require a trustee to distribute all of the income, but permit the trustee to decide how much to distribute to each member of a class of beneficiaries; or when the terms of a trust provide that the beneficiary shall receive the greater of the trust accounting income and a fixed dollar amount (an annuity), or of trust accounting income and a fractional share of the value of the trust assets (a unitrust amount). If the trust authorizes the trustee in its discretion to distribute the trust's income to the beneficiary or to accumulate some or all of the income, the condition will be met because the terms of the trust do not permit the trustee to distribute more than the trust accounting income.

To meet the third condition, the trustee must first meet the requirements of subsection 3323(a), i.e., she must apply the terms of the trust, decide whether to exercise the discretionary powers given to the trustee under the terms of the trust, and must apply the provisions of the Act if the terms of the trust do not contain a different provision or give the trustee discretion. Second, the trustee must determine the extent to which the terms of the trust clearly manifest an intention by the settlor that the trustee may or must favor one or more of the beneficiaries. To the extent that the terms of the trust do not require partiality, the trustee must conclude that she is unable to comply with the duty to administer the trust impartially. To the extent that the terms of the trust do require or permit the trustee to favor the income beneficiary or the remainder beneficiary, the trustee must conclude that she is unable to achieve the degree of partiality required or permitted. If the trustee comes to either conclusion - that she is unable to administer the trust impartially or that she is unable to achieve the degree of partiality required or permitted - she may exercise the power to adjust under subsection 3324(a).

Impartiality and productivity of income. The duty of impartiality between income and remainder beneficiaries is linked to the trustee's duty to make the portfolio productive of trust accounting income whenever the distribution requirements are expressed in terms of distributing the trust's "income." The 1962 Act implies that the duty to produce income applies on an asset by asset basis because the right of an income beneficiary to receive "delayed income" from the sale proceeds of underproductive property under section 12 of that Act arises if "any part of principal ... has not produced an average net income of at least 1% per year of its inventory value for more than a year . . . ." Under the prudent investor rule, "[t]o whatever extent a requirement of income productivity exists, ... the requirement applies not investment by investment but to the portfolio as a whole." Restatement of Trusts 3d: Prudent Investor Rule § 227, comment i, at 34. The power to adjust under subsection 3324(a) is also to be exercised by considering net income from the portfolio as a whole and not investment by investment. Subsection 3363(b) of this Act eliminates the underproductive property rule in all cases other than trusts for which a marital deduction is allowed; the rule applies to a marital deduction trust if the trust's assets "consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets . . ." - in other words, the section applies by reference to the portfolio as a whole.

While the purpose of the power to adjust in subsection 3324(a) is to eliminate the need for a trustee who operates under the prudent investor rule to be concerned about the income component of the portfolio's total return, the trustee must still determine the extent to which a distribution must be made to an income beneficiary and the adequacy of the portfolio's liquidity as a whole to make that distribution.

For a discussion of investment considerations involving specific investments and techniques under the prudent investor rule, see Restatement of Trusts 3d: Prudent Investor Rule § 227, comments k-p.

Factors to consider in exercising the power to adjust. Subsection 3324(b) requires a trustee to consider factors relevant to the trust and its beneficiaries in deciding whether and to what extent the power to adjust should be exercised. Section 2(c) of the Uniform Prudent Investor Act sets forth circumstances that a trustee is to consider in investing and managing trust assets. The circumstances in Section 2(c) of the Uniform Prudent Investor Act are the source of the factors in subdivisions (3)-(6) and (8) of subsection 3324(b) (modified where necessary to adapt them to the purposes of this Act) so that, to the extent possible, comparable factors will apply to investment decisions and decisions involving the power to adjust. If a trustee who is operating under the prudent investor rule decides that the portfolio should be composed of financial assets whose total return will result primarily from capital appreciation rather than dividends, interest, and rents, the trustee can decide at the same time the extent to which an adjustment from principal to income may be necessary under section 3324. On the other hand, if a trustee decides that the risk and return objectives for the trust are best achieved by a portfolio whose total return includes interest and dividend income that is sufficient to provide the income beneficiary with the beneficial interest to which the beneficiary is entitled under the terms of the trust, the trustee can decide that it is unnecessary to exercise the power to adjust.

Assets received from the settlor. Section 3 of the Uniform Prudent Investor Act provides that "[a] trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying." The special circumstances may include the wish to retain a family business, the benefit derived from deferring liquidation of the asset in order to defer payment of income taxes, or the anticipated capital appreciation from retaining an asset such as undeveloped real estate for a long period. To the extent the trustee retains assets received from the settlor because of special circumstances that overcome the duty to diversify, the trustee may take these circumstances into account in determining whether and to what extent the power to adjust should be exercised to change the results produced by other provisions of this Act that apply to the retained assets. See subdivision 3324(b)(5); Uniform Prudent Investor Act § 3, comment, 7B U.L.A. 18, at 29-30 (Supp. 2006); Restatement of Trusts 3d: Prudent Investor Rule § 229 and comments a-e.

Limitations on the power to adjust. The purpose of subdivisions (c)(1)-(4) is to preserve tax benefits that may have been an important purpose for creating the trust. Subdivisions (c)(5), (6), and (8) deny the power to adjust in the circumstances described in those subsections in order to prevent adverse tax consequences, and subdivision (c)(7) denies the power to adjust to any beneficiary, whether or not possession of the power may have adverse tax consequences.

Under subdivision (c)(1), a trustee cannot make an adjustment that diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction is allowed; but this subsection does not prevent the trustee from making an adjustment that increases the amount of income paid from a marital deduction trust to the spouse. Subdivision (c)(1) applies to a trust that qualifies for the marital deduction because the spouse has a general power of appointment over the trust, but it applies to a qualified terminable interest property (QTIP) trust only if and to the extent that the fiduciary makes the election required to obtain the tax deduction. Subdivision (c)(1) does not apply to a so-called "estate" trust. This type of trust qualifies for the marital deduction because the terms of the trust require the principal and undistributed income to be paid to the surviving spouse's estate when the spouse dies; it is not necessary for the terms of an estate trust to require the income to be distributed annually. Treas. Reg. § 26.2056(c)-2(b)(1)(iii).

Subdivision (c)(3) applies to annuity trusts and unitrusts with no charitable beneficiaries as well as to trusts with charitable income or remainder beneficiaries; its purpose is to make it clear that a beneficiary's right to receive a fixed annuity or a fixed fraction of the value of a trust's assets is not subject to adjustment under subsection 3324(a). Subdivision (c)(3) does not apply to any additional amount to which the beneficiary may be entitled that is expressed in terms of a right to receive income from the trust. For example, if a beneficiary is to receive a fixed annuity or the trust's income, whichever is greater, subdivision (c)(3) does not prevent a trustee from making an adjustment under subsection 3324(a) in determining the amount of the trust's income.

If subdivision (c)(5), (6), (7), or (8), prevents a trustee from exercising the power to adjust, subsection (d) permits a cotrustee who is not subject to the provision to exercise the power unless the terms of the trust do not permit the cotrustee to do so.

Release of the power to adjust. Subsection 3324(e) permits a trustee to release all or part of the power to adjust in circumstances in which the possession or exercise of the power might deprive the trust of a tax benefit or impose a tax burden. For example, if possessing the power would diminish the actuarial value of the income interest in a trust for which the income beneficiary's estate may be eligible to claim a credit for property previously taxed if the beneficiary dies within ten years after the death of the person creating the trust, the trustee is permitted under subsection (e) to release just the power to adjust from income to principal.

Trust terms that limit a power to adjust. Subsection 3324(f) applies to trust provisions that limit a trustee's power to adjust. Since the power is intended to enable trustees to employ the prudent investor rule without being constrained by traditional principal and income rules, an instrument executed before the adoption of this Act whose terms describe the amount that may or must be distributed to a beneficiary by referring to the trust's income or that prohibit the invasion of principal or that prohibit equitable adjustments in general should not be construed as forbidding the use of the power to adjust under subsection 3324(a) if the need for adjustment arises because the trustee is operating under the prudent investor rule. Instruments containing such provisions that are executed after the adoption of this Act should specifically refer to the power to adjust if the settlor intends to forbid its use. See generally, Joel C. Dobris, Limits on the Doctrine of Equitable Adjustment in Sophisticated Postmortem Tax Planning, 66 Iowa L. Rev. 273 (1981).

Examples. The following examples illustrate the application of section 3324:

Example (1) B T is the successor trustee of a trust that provides income to A for life, remainder to B. T has received from the prior trustee a portfolio of financial assets invested 20% in stocks and 80% in bonds. Following the prudent investor rule, T determines that a strategy of investing the portfolio 50% in stocks and 50% in bonds has risk and return objectives that are reasonably suited to the trust, but T also determines that adopting this approach will cause the trust to receive a smaller amount of dividend and interest income. After considering the factors in subsection 3324(b), T may transfer cash from principal to income to the extent T considers it necessary to increase the amount distributed to the income beneficiary.

B T has received from the prior trustee a portfolio of financial assets invested 20% in stocks and 80% in bonds. Following the prudent investor rule, T determines that a strategy of investing the portfolio 50% in stocks and 50% in bonds has risk and return objectives that are reasonably suited to the trust, but T also determines that adopting this approach will cause the trust to receive a smaller amount of dividend and interest income. After considering the factors in subsection 3324(b), T may transfer cash from principal to income to the extent T considers it necessary to increase the amount distributed to the income beneficiary.

Example (2) B T is the trustee of a trust that requires the income to be paid to the settlor's son C for life, remainder to C's daughter D. In a period of very high inflation, T purchases bonds that pay double-digit interest and determines that a portion of the interest, which is allocated to income under section 3356, is a return of capital. In consideration of the loss of value of principal due to inflation and other factors that T considers relevant, T may transfer part of the interest to principal.

Example (3) B T is the trustee of a trust that requires the income to be paid to the settlor's sister E for life, remainder to charity F. E is a retired schoolteacher who is single and has no children. E's income from her social security, pension, and savings exceeds the amount required to provide for her accustomed standard of living. The terms of the trust permit T to invade principal to provide for E's health and to support her in her accustomed manner of living, but do not otherwise indicate that T should favor E or F. Applying the prudent investor rule, T determines that the trust assets should be invested entirely in growth stocks that produce very little dividend income. Even though it is not necessary to invade principal to maintain E's accustomed standard of living, she is entitled to receive from the trust the degree of beneficial enjoyment normally accorded a person who is the sole income beneficiary of a trust, and T may transfer cash from principal to income to provide her with that degree of enjoyment.

Example (4) B T is the trustee of a trust that is governed by the law of State X. The trust became irrevocable before State X adopted the prudent investor rule. The terms of the trust require all of the income to be paid to G for life, remainder to H, and also give T the power to invade principal for the benefit of G for "dire emergencies only." The terms of the trust limit the aggregate amount that T can distribute to G from principal during G's life to 6% of the trust's value at its inception. The trust's portfolio is invested initially 50% in stocks and 50% in bonds, but after State X adopts the prudent investor rule T determines that, to achieve suitable risk and return objectives for the trust, the assets should be invested 90% in stocks and 10% in bonds. This change increases the total return from the portfolio and decreases the dividend and interest income. Thereafter, even though G does not experience a dire emergency, T may exercise the power to adjust under subsection 3324(a) to the extent that T determines that the adjustment is from only the capital appreciation resulting from the change in the portfolio's asset allocation. If T is unable to determine the extent to which capital appreciation resulted from the change in asset allocation or is unable to maintain adequate records to determine the extent to which principal distributions to G for dire emergencies do not exceed the 6% limitation, T may not exercise the power to adjust. See Joel C. Dobris, Limits on the Doctrine of Equitable Adjustment in Sophisticated Postmortem Tax Planning, 66 Iowa L. Rev. 273 (1981).

Example (5) B T is the trustee of a trust for the settlor's child. The trust owns a diversified portfolio of marketable financial assets with a value of $600,000, and is also the sole beneficiary of the settlor's IRA, which holds a diversified portfolio of marketable financial assets with a value of $900,000. The trust receives a distribution from the IRA that is the minimum amount required to be distributed under the Internal Revenue Code, and T allocates 10% of the distribution to income under subsection 3359(c). The total return on the IRA's assets exceeds the amount distributed to the trust, and the value of the IRA at the end of the year is more than its value at the beginning of the year. Relevant factors that T may consider in determining whether to exercise the power to adjust and the extent to which an adjustment should be made to comply with subsection 3323(b) include the total return from all of the trust's assets, those owned directly as well as its interest in the IRA, the extent to which the trust will be subject to income tax on the portion of the IRA distribution that is allocated to principal, and the extent to which the income beneficiary will be subject to income tax on the amount that T distributes to the income beneficiary.

Example (6) B T is the trustee of a trust whose portfolio includes a large parcel of undeveloped real estate. T pays real property taxes on the undeveloped parcel from income each year pursuant to subdivision 3371(3). After considering the return from the trust's portfolio as a whole and other relevant factors described in subsection 3324(b), T may exercise the power to adjust under subsection 3324(a) to transfer cash from principal to income in order to distribute to the income beneficiary an amount that T considers necessary to comply with subsection 3323(b).

Example (7) B T is the trustee of a trust whose portfolio includes an interest in a mutual fund that is sponsored by T. As the manager of the mutual fund, T charges the fund a management fee that reduces the amount available to distribute to the trust by $2,000. If the fee had been paid directly by the trust, one-half of the fee would have been paid from income under subdivision 3371(1) and the other one-half would have been paid from principal under subdivision 3372(a)(1). After considering the total return from the portfolio as a whole and other relevant factors described in subsection 3324(b), T may exercise its power to adjust under subsection 3324(a) by transferring $1,000, or half of the trust's proportionate share of the fee, from principal to income.

§ 3325. Judicial control of discretionary power.

  1. The court may not order a fiduciary to change a decision to exercise or not to exercise a discretionary power conferred by this chapter unless it determines that the decision was an abuse of the fiduciary's discretion. A fiduciary's decision is not an abuse of discretion merely because the court would have exercised the power in a different manner or would not have exercised the power.
  2. The decisions to which subsection (a) of this section applies include:
    1. a decision under subsection 3324(a) of this title as to whether and to what extent an amount should be transferred from principal to income or from income to principal; and
    2. a decision regarding the factors that are relevant to the trust and its beneficiaries, the extent to which the factors are relevant, and the weight, if any, to be given to those factors, in deciding whether and to what extent to exercise the discretionary power conferred by subsection 3324(a) of this title.
  3. If the court determines that a fiduciary has abused the fiduciary's discretion, the court may place the income and remainder beneficiaries in the positions they would have occupied if the discretion had not been abused, according to the following rules:
    1. To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or in a distribution that is too small, the court shall order the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to the beneficiary's appropriate position.
    2. To the extent that the abuse of discretion has resulted in a distribution to a beneficiary which is too large, the court shall place the beneficiaries, the trust, or both, in whole or in part, in their appropriate positions by ordering the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or ordering that beneficiary to return some or all of the distribution to the trust.
    3. To the extent that the court is unable, after applying subdivisions (1) and (2) of this subsection, to place the beneficiaries or the trust or both in the positions they would have occupied if the discretion had not been abused, the court may order the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust or both.
  4. Upon petition by the fiduciary, the court having jurisdiction over a trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this chapter will result in an abuse of the fiduciary's discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

General. All of the discretionary powers in the 1997 Act are subject to the normal rules that govern a fiduciary's exercise of discretion. Section 3325 codifies those rules for purposes of the Act so that they will be readily apparent and accessible to fiduciaries, beneficiaries, their counsel and the courts if and when questions concerning such powers arise.

Section 3325 also makes clear that the normal rules governing the exercise of a fiduciary's powers apply to the discretionary power to adjust conferred upon a trustee by subsection 3324(a). Discretionary provisions authorizing trustees to determine what is income and what is principal have been used in governing instruments for years; Section 2 of the 1931 Uniform Principal and Income Act recognized that practice by providing that "the person establishing the principal may himself direct the manner of ascertainment of income and principal . . . or grant discretion to the trustee or other person to do so . . . ." Subdivision 3323(a)(2) also recognizes the power of a settlor to grant such discretion to the trustee. Section 3325 applies to a discretionary power granted by the terms of a trust or a will as well as the power to adjust in subsection 3324(a).

Power to Adjust. The exercise of the power to adjust is governed by a trustee's duty of impartiality, which requires the trustee to strike an appropriate balance between the interests of the income and remainder beneficiaries. Subsection 3323(b) expresses this duty by requiring the trustee to "administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries." Because this involves the exercise of judgment in circumstances rarely capable of perfect resolution, trustees are not expected to achieve perfection; they are, however, required to make conscious decisions in good faith and with proper motives.

In seeking the proper balance between the interests of the beneficiaries in matters involving principal and income, a trustee's traditional approach has been to determine the settlor's objectives from the terms of the trust, gather the information needed to ascertain the financial circumstances of the beneficiaries, determine the extent to which the settlor's objectives can be achieved with the resources available in the trust, and then allocate the trust's assets between stocks and fixed-income securities in a way that will produce a particular level or range of income for the income beneficiary. The key element in this process has been to determine the appropriate level or range of income for the income beneficiary, and that will continue to be the key element in deciding whether and to what extent to exercise the discretionary power conferred by subsection 3324(a). If it becomes necessary for a court to determine whether an abuse of the discretionary power to adjust between principal and income has occurred, the criteria should be the same as those that courts have used in the past to determine whether a trustee has abused its discretion in allocating the trust's assets between stocks and fixed-income securities.

A fiduciary has broad latitude in choosing the methods and criteria to use in deciding whether and to what extent to exercise the power to adjust in order to achieve impartiality between income beneficiaries and remainder beneficiaries or the degree of partiality for one or the other that is provided for by the terms of the trust or the will. For example, in deciding what the appropriate level or range of income should be for the income beneficiary and whether to exercise the power, a trustee may use the methods employed prior to the adoption of the 1997 Act in deciding how to allocate trust assets between stocks and fixed-income securities; or may consider the amount that would be distributed each year based on a percentage of the portfolio's value at the beginning or end of an accounting period, or the average portfolio value for several accounting periods, in a manner similar to a unitrust, and may select a percentage that the trustee believes is appropriate for this purpose and use the same percentage or different percentages in subsequent years. The trustee may also use hypothetical portfolios of marketable securities to determine an appropriate level or range of income within which a distribution might fall.

An adjustment may be made prospectively at the beginning of an accounting period, based on a projected return or range of returns for a trust's portfolio, or retrospectively after the fiduciary knows the total realized or unrealized return for the period; and instead of an annual adjustment, the trustee may distribute a fixed dollar amount for several years, in a manner similar to an annuity, and may change the fixed dollar amount periodically. No inference of abuse is to be drawn if a fiduciary uses different methods or criteria for the same trust from time to time, or uses different methods or criteria for different trusts for the same accounting period.

While a trustee must consider the portfolio as a whole in deciding whether and to what extent to exercise the power to adjust, a trustee may apply different criteria in considering the portion of the portfolio that is composed of marketable securities and the portion whose market value cannot be determined readily, and may take into account a beneficiary's use or possession of a trust asset.

Under the prudent investor rule, a trustee is to incur costs that are appropriate and reasonable in relation to the assets and the purposes of the trust, and the same consideration applies in determining whether and to what extent to exercise the power to adjust. In making investment decisions under the prudent investor rule, the trustee will have considered the purposes, terms, distribution requirements, and other circumstances of the trust for the purpose of adopting an overall investment strategy having risk and return objectives reasonably suited to the trust. A trustee is not required to duplicate that work for principal and income purposes, and in many cases the decision about whether and to what extent to exercise the power to adjust may be made at the same time as the investment decisions. To help achieve the objective of reasonable investment costs, a trustee may also adopt policies that apply to all trusts or to individual trusts or classes of trusts, based on their size or other criteria, stating whether and under what circumstances the power to adjust will be exercised and the method of making adjustments; no inference of abuse is to be drawn if a trustee adopts such policies.

General rule. The first sentence of subsection 3325(a) is from Restatement (Second) of Trusts § 187 and Restatement (Third) of Trusts (Tentative Draft No. 2, 1999) § 50(1). The second sentence of subsection 3325(a) derives from comment e to § 187 of the Second Restatement and comment b to § 50 of the Third Restatement.

The reference in subsection 3325(a) to a fiduciary's decision to exercise or not to exercise a discretionary power underscores a fundamental precept, which is that a fiduciary has a duty to make a conscious decision about exercising or not exercising a discretionary power. Comment b to § 50 of the Third Restatement states:

[A] court will intervene where the exercise of a power is left to the judgment of a trustee who improperly fails to exercise that judgment. Thus, even where a trustee has discretion whether or not to make any payments to a particular beneficiary, the court will interpose if the trustee, arbitrarily or without knowledge of or inquiry into relevant circumstances, fails to exercise the discretion.

Subsection 3325(b) makes clear that the rule of subsection (a) applies not only to the power conferred by subsection 3324(a) but also to the evaluation process required by subsection 3324(b) in deciding whether and to what extent to exercise the power to adjust. Under subsection 3324(b), a trustee is to consider all of the factors that are relevant to the trust and its beneficiaries, including, to the extent the trustee determines they are relevant, the nine factors enumerated in subsection 3324(b). Subsection 3324(b) derives from Section 2(c) of the Uniform Prudent Investor Act, which lists eight circumstances that a trustee shall consider, to the extent they are relevant, in investing and managing assets. The trustee's decisions about what factors are relevant for purposes of subsection 3324(b) and the weight to be accorded each of the relevant factors are part of the discretionary decision-making process. As such, these decisions are not subject to change for the purpose of changing the trustee's ultimate decision unless the court determines that there has been an abuse of discretion in determining the relevancy and weight of these factors.

Remedy. The exercise or nonexercise of a discretionary power under the Act normally affects the amount or timing of a distribution to the income or remainder beneficiaries. The primary remedy under subsection 3325(c) for abuse of discretion is the restoration of the beneficiaries and the trust to the positions they would have occupied if the abuse had not occurred. It draws on a basic principle of restitution that if a person pays money to someone who is not intended to receive it (and in a case to which this Act applies, not intended by the settlor to receive it in the absence of an abuse of discretion by the trustee), that person is entitled to restitution on the ground that the payee would be unjustly enriched if he were permitted to retain the payment. See Restatement of Restitution § 22 (1937). The objective is to accomplish the restoration initially by making adjustments between the beneficiaries and the trust to the extent possible; to the extent that restoration is not possible by such adjustments, a court may order the trustee to pay an amount to one or more of the beneficiaries, the trust, or both the beneficiaries and the trust. If the court determines that it is not possible in the circumstances to restore them to their appropriate positions, the court may provide other remedies appropriate to the circumstances. The approach of subsection 3325(c) is supported by comment b to § 50 of the Third Restatement of Trusts:

"When judicial intervention is required, a court may direct the trustee to make or refrain from making certain payments; issue instructions to clarify the standards or guidelines applicable to the exercise of the power; or rescind the trustee's payment decisions, usually directing the trustee to recover amounts improperly distributed and holding the trustee liable for failure or inability to do so[.]"

Advance determinations. Subsection 3325(d) employs the familiar remedy of the trustee's petition to the court for instructions. It requires the court to determine, upon a petition by the fiduciary, whether a proposed exercise or nonexercise of a discretionary power by the fiduciary of a power conferred by the Act would be an abuse of discretion under the general rule of subsection 3325(a). If the petition contains the information prescribed in the second sentence of subsection (d), the proposed action or inaction is presumed not to result in an abuse, and a beneficiary who challenges the proposal must establish that it will.

Subsection (d) is intended to provide a fiduciary the opportunity to obtain an assurance of finality in a judicial proceeding before proceeding with a proposed exercise or nonexercise of a discretionary power. Its purpose is not, however, to have the court instruct the fiduciary how to exercise the discretion.

A fiduciary may also obtain the consent of the beneficiaries to a proposed act or an omission to act, and a beneficiary cannot hold the fiduciary liable for that act or omission unless:

  1. the beneficiary was under an incapacity at the time of such consent or of such act or omission; or
  2. the beneficiary, when he gave his consent, did not know of his rights and of the material facts which the trustee knew or should have known and which the trustee did not reasonably believe that the beneficiary knew; or
  3. the consent of the beneficiary was induced by improper conduct of the trustee.

Restatement (Second) of Trusts § 216.

If there are many beneficiaries, including some who are incapacitated or unascertained, the fiduciary may prefer the greater assurance of finality provided by a judicial proceeding that will bind all persons who have an interest in the trust.

§ 3326. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Added 2011, No. 114 (Adj. Sess.), § 1.

§ 3327. Severability clause.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

Added 2011, No. 114 (Adj. Sess.), § 1.

Subchapter 2. Decedent's Estate or Terminating Income Interest

§ 3331. Determination and distribution of net income.

After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:

  1. A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in subchapters 3, 4, and 5 of this chapter which apply to trustees and under the rules in subdivision (5) of this section. The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.
  2. A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in subchapters 3, 4, and 5 of this chapter which apply to trustees and by:
    1. including in net income all income from property used to discharge liabilities;
    2. paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and
    3. paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.
  3. Unless the will or trust instrument otherwise provides, or the court otherwise directs, a fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright interest from the date that is one year following the date of death of the person whose death gives rise to the payment of the pecuniary bequest or the happening of the contingency that causes the income interest to end, from net income determined under subdivision (2) of this section or from principal to the extent that net income is insufficient. However, this subdivision shall not apply to a pecuniary bequest:
    1. to or for the benefit of a decedent's surviving spouse that is or can be qualified for the federal estate tax marital deduction; or
    2. to or for the benefit of charitable organizations that are qualified for the federal estate tax charitable deduction, including a charitable remainder trust.
  4. A fiduciary shall distribute the net income remaining after distributions required by subdivision (3) of this section in the manner described in section 3332 of this title to all other beneficiaries.
  5. A fiduciary may not reduce principal or income receipts from property described in subdivision (1) of this section because of a payment described in section 3371 or 3372 of this title to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Terminating income interests and successive income interests. A trust that provides for a single income beneficiary and an outright distribution of the remainder ends when the income interest ends. A more complex trust may have a number of income interests, either concurrent or successive, and the trust will not necessarily end when one of the income interests ends. For that reason, the Act speaks in terms of income interests ending and beginning rather than trusts ending and beginning. When an income interest in a trust ends, the trustee's powers continue during the winding up period required to complete its administration. A terminating income interest is one that has ended but whose administration is not complete.

If two or more people are given the right to receive specified percentages or fractions of the income from a trust concurrently and one of the concurrent interests ends, e.g., when a beneficiary dies, the beneficiary's income interest ends but the trust does not. Similarly, when a trust with only one income beneficiary ends upon the beneficiary's death, the trust instrument may provide that part or all of the trust assets shall continue in trust for another income beneficiary. While it is common to think and speak of this (and even to characterize it in a trust instrument) as a "new" trust, it is a continuation of the original trust for a remainder beneficiary who has an income interest in the trust assets instead of the right to receive them outright. For purposes of this Act, this is a successive income interest in the same trust. The fact that a trust may or may not end when an income interest ends is not significant for purposes of this Act.

If the assets that are subject to a terminating income interest pass to another trust because the income beneficiary exercises a general power of appointment over the trust assets, the recipient trust would be a new trust; and if they pass to another trust because the beneficiary exercises a nongeneral power of appointment over the trust assets, the recipient trust might be a new trust in some States (see 5A Austin W. Scott & William F. Fratcher, The Law of Trusts § 640, at 483 (4th ed. 1989)); but for purposes of this Act a new trust created in these circumstances is also a successive income interest.

Gift of a pecuniary amount. Subdivisions 3331(3) and (4) provide different rules for an outright gift of a pecuniary amount and a gift in trust of a pecuniary amount; this is the same approach used in Section 5(b)(2) of the 1962 Act.

Interest on pecuniary amounts. Subdivision 3331(3) provides that the beneficiary of an outright pecuniary amount is to receive the interest or other amount provided by applicable law if there is no provision in the will or the terms of the trust. Many states have no applicable law that provides for interest or some other amount to be paid on an outright pecuniary gift under an inter vivos trust; this section provides that in such a case the interest or other amount to be paid shall be the same as the interest or other amount required to be paid on testamentary pecuniary gifts. This provision is intended to accord gifts under inter vivos instruments the same treatment as testamentary gifts. The various state authorities that provide for the amount that a beneficiary of an outright pecuniary amount is entitled to receive are collected in Richard B. Covey, Marital Deduction and Credit Shelter Dispositions and the Use of Formula Provisions, App. B (4th ed. 1997).

Administration expenses and interest on death taxes. Under subdivision 3331(2)(B) a fiduciary may pay administration expenses and interest on death taxes from either income or principal. An advantage of permitting the fiduciary to choose the source of the payment is that, if the fiduciary's decision is consistent with the decision to deduct these expenses for income tax purposes or estate tax purposes, it eliminates the need to adjust between principal and income that may arise when, for example, an expense that is paid from principal is deducted for income tax purposes or an expense that is paid from income is deducted for estate tax purposes.

The United States Supreme Court has considered the question of whether an estate tax marital deduction or charitable deduction should be reduced when administration expenses are paid from income produced by property passing in trust for a surviving spouse or for charity and deducted for income tax purposes. The Court rejected the IRS position that administration expenses properly paid from income under the terms of the trust or state law must reduce the amount of a marital or charitable transfer, and held that the value of the transferred property is not reduced for estate tax purposes unless the administration expenses are material in light of the income the trust corpus could have been expected to generate. Commissioner v. Estate of Otis C. Hubert, 117 S. Ct. 1124 (1997). The provision in subdivision 3331(2)(B) permits a fiduciary to pay and deduct administration expenses from income only to the extent that it will not cause the reduction or loss of an estate tax marital or charitable contributions deduction, which means that the limit on the amount payable from income will be established eventually by Treasury Regulations.

Interest on estate taxes. The IRS agrees that interest on estate and inheritance taxes may be deducted for income tax purposes without having to reduce the estate tax deduction for amounts passing to a charity or surviving spouse, whether the interest is paid from principal or income. Rev. Rul. 93-48, 93-2 C.B. 270. For estates of persons who died before 1998, a fiduciary may not want to deduct for income tax purposes interest on estate tax that is deferred under section 6166 or 6163 of the Internal Revenue Code because deducting that interest for estate tax purposes may produce more beneficial results, especially if the estate has little or no income or the income tax bracket is significantly lower than the estate tax bracket. For estates of persons who die after 1997, no estate tax or income tax deduction will be allowed for interest paid on estate tax that is deferred under section 6166. However, interest on estate tax deferred under section 6163 will continue to be deductible for both purposes, and interest on estate tax deficiencies will continue to be deductible for estate tax purposes if an election under section 6166 is not in effect.

Under the 1962 Act, Section 13(c)(5) charges interest on estate and inheritance taxes to principal. The 1931 Act has no provision. Subdivision 3371(3) of this title provides that, except to the extent provided in subdivision 3331(2)(B) or (C), all interest must be paid from income.

Vermont Comment

Determination and Distribution of Net Income. The Vermont Act adds qualifying language to subdivision 3331(3) providing that "(u)nless the will or trust instrument otherwise provides, or the court otherwise directs(,)" and then goes on to provide that interest on a pecuniary bequest only begins to accrue one year from the date of death pursuant to Woodward's Estate v. Holton et al., 78 Vt. 254 (1909). This appears to be the only instance where the uniform act deviates from Vermont law, which the additional language preserves here. To conform to this change, the following language is deleted at the end of subdivision (4): "including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust."

§ 3332. Distribution to residuary and remainder beneficiaries.

  1. Each beneficiary described in subdivision 3331(4) of this title is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the beneficiary's fractional interest in the net income the fiduciary has received after the date of death or terminating event or earlier distribution date, but has not distributed as of the current distribution date.
  2. In determining a beneficiary's share of net income, the following rules apply:
    1. The beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.
    2. The beneficiary's fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts.
    3. The beneficiary's fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation.
    4. The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
  3. If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.
  4. A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Relationship to prior Acts. Section 3332 retains the concept in Section 5(b)(2) of the 1962 Act that the residuary legatees of estates are to receive net income earned during the period of administration on the basis of their proportionate interests in the undistributed assets when distributions are made. It changes the basis for determining their proportionate interests by using asset values as of a date reasonably near the time of distribution instead of inventory values; it extends the application of these rules to distributions from terminating trusts; and it extends these rules to gain or loss realized from the disposition of assets during administration, an omission in the 1962 Act that has been noted by several commentators. See, e.g., Richard B. Covey, Marital Deduction and Credit Shelter Dispositions and the Use of Formula Provisions 91 (4th ed. 1998); Thomas H. Cantrill, Fractional or Percentage Residuary Bequests: Allocation of Postmortem Income, Gain and Unrealized Appreciation, 10 Prob. Notes 322, 327 (1985).

Subchapter 3. Apportionment at Beginning and End of Income Interest

§ 3341. When right to income begins and ends.

  1. An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
  2. An asset becomes subject to a trust:
    1. on the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life;
    2. on the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or
    3. on the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death.
  3. An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d) of this section, even if there is an intervening period of administration to wind up the preceding income interest.
  4. An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Period during which there is no beneficiary. The purpose of the second part of subsection (d) is to provide that, at the end of a period during which there is no beneficiary to whom a trustee may distribute income, the trustee must apply the same apportionment rules that apply when a mandatory income interest ends. This provision would apply, for example, if a settlor creates a trust for grandchildren before any grandchildren are born. When the first grandchild is born, the period preceding the date of birth is treated as having ended, followed by a successive income interest, and the apportionment rules in sections 3342 and 3343 apply accordingly if the terms of the trust do not contain different provisions.

§ 3342. Apportionment of receipts and disbursements when decedent dies or income interest begins.

  1. A trustee shall allocate an income receipt or disbursement other than one to which subdivision 3331(1) of this title applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
  2. A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.
  3. An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which section 3351 of this title applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts. Professor Bogert stated that "Section 4 of the [1962] Act makes a change with respect to the apportionment of the income of trust property not due until after the trust began but which accrued in part before the commencement of the trust. It treats such income as to be credited entirely to the income account in the case of a living trust, but to be apportioned between capital and income in the case of a testamentary trust. The [1931] Act apportions such income in the case of both types of trusts, except in the case of corporate dividends." George G. Bogert, The Revised Uniform Principal and Income Act, 38 Notre Dame Law Rev. 50, 52 (1962). The 1962 Act also provides that an asset passing to an inter vivos trust by a bequest in the settlor's will is governed by the rule that applies to a testamentary trust, so that different rules apply to assets passing to an inter vivos trust depending upon whether they were transferred to the trust during the settlor's life or by his will.

Having several different rules that apply to similar transactions is confusing. In order to simplify administration, Section 3342 applies the same rule to inter vivos trusts (revocable and irrevocable), testamentary trusts, and assets that become subject to an inter vivos trust by a testamentary bequest.

Periodic payments. Under section 3342, a periodic payment is principal if it is due but unpaid before a decedent dies or before an asset becomes subject to a trust, but the next payment is allocated entirely to income and is not apportioned. Thus, periodic receipts such as rents, dividends, interest, and annuities, and disbursements such as the interest portion of a mortgage payment, are not apportioned. This is the original common law rule. Edwin A. Howes, Jr., The American Law Relating to Income and Principal 70 (1905). In trusts in which a surviving spouse is dependent upon a regular flow of cash from the decedent's securities portfolio, this rule will help to maintain payments to the spouse at the same level as before the settlor's death. Under the 1962 Act, the pre-death portion of the first periodic payment due after death is apportioned to principal in the case of a testamentary trust or securities bequeathed by will to an inter vivos trust.

Nonperiodic payments. Under the second sentence of subsection 3342(b), interest on an obligation that does not provide a due date for the interest payment, such as interest on an income tax refund, would be apportioned to principal to the extent it accrues before a person dies or an income interest begins unless the obligation is specifically given to a devisee or remainder beneficiary, in which case all of the accrued interest passes under subdivision 3331(1) to the person who receives the obligation. The same rule applies to interest on an obligation that has a due date but does not provide for periodic payments. If there is no stated interest on the obligation, such as a zero coupon bond, and the proceeds from the obligation are received more than one year after it is purchased or acquired by the trustee, the entire amount received is principal under section 3356.

§ 3343. Apportionment when income interest ends.

  1. As used in this section, "undistributed income" means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
  2. When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.
  3. When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts. Both the 1931 Act (Section 4) and the 1962 Act (Section 4(d)) provide that a deceased income beneficiary's estate is entitled to the undistributed income. The Drafting Committee concluded that this is probably not what most settlors would want, and that, with respect to undistributed income, most settlors would favor the income beneficiary first, the remainder beneficiaries second, and the income beneficiary's heirs last, if at all. However, it decided not to eliminate this provision to avoid causing disputes about whether the trustee should have distributed collected cash before the income beneficiary died.

Accrued periodic payments. Under the prior Acts, an income beneficiary or his estate is entitled to receive a portion of any payments, other than dividends, that are due or that have accrued when the income interest terminates. The last sentence of subsection (a) changes that rule by providing that such items are not included in undistributed income. The items affected include periodic payments of interest, rent, and dividends, as well as items of income that accrue over a longer period of time; the rule also applies to expenses that are due or accrued.

Example; accrued periodic payments. The rules in sections 3342 and Section 3343 work in the following manner: assume that a periodic payment of rent that is due on July 20 has not been paid when an income interest ends on July 30; the successive income interest begins on July 31, and the rent payment that was due on July 20 is paid on August 3. Under subsection 3342(a), the July 20 payment is added to the principal of the successive income interest when received. Under section 3342(b), the entire periodic payment of rent that is due on August 20 is income when received by the successive income interest. Under section 3343, neither the income beneficiary of the terminated income interest nor the beneficiary's estate is entitled to any part of either the July 20 or the August 20 payments because neither one was received before the income interest ended on July 30. The same principles apply to expenses of the trust.

Beneficiary with an unqualified power to revoke. The requirement in subsection (b) to pay undistributed income to a mandatory income beneficiary or her estate does not apply to the extent the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. Without this exception, subsection (b) would apply to a revocable living trust whose settlor is the mandatory income beneficiary during her lifetime, even if her will provides that all of the assets in the probate estate are to be distributed to the trust.

If a trust permits the beneficiary to withdraw all or a part of the trust principal after attaining a specified age and the beneficiary attains that age but fails to withdraw all of the principal that she is permitted to withdraw, a trustee is not required to pay her or her estate the undistributed income attributable to the portion of the principal that she left in the trust. The assumption underlying this rule is that the beneficiary has either provided for the disposition of the trust assets (including the undistributed income) by exercising a power of appointment that she has been given or has not withdrawn the assets because she is willing to have the principal and undistributed income be distributed under the terms of the trust. If the beneficiary has the power to withdraw 25% of the trust principal, the trustee must pay to her or her estate the undistributed income from the 75% that she cannot withdraw.

Subchapter 4. Allocation of Receipts During Administration of Trust

PART 1. RECEIPTS FROM ENTITIES

§ 3351. Character of receipts.

  1. As used in this section, "entity" means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which section 3352 of this title applies, a business or activity to which section 3353 of this title applies, or an asset-backed security to which section 3365 of this title applies.
  2. Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity, including reinvested cash dividends.
  3. A trustee shall allocate the following receipts from an entity to principal:
    1. property other than money, excluding reinvested cash dividends, provided that if the trustee may elect between money and other property as a distribution, property so elected and distributed shall retain its character as income;
    2. money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;
    3. money received in total or partial liquidation of the entity;
    4. money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes; and
    5. capital gains and capital gains distributions.
  4. Money is received in partial liquidation:
    1. to the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
    2. if the total amount of money and property received in a distribution or series of related distributions is greater than 20 percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.
  5. Money is not received in partial liquidation, nor may it be taken into account under subdivision (d)(2) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
  6. A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Entities to which Section 3351 applies. The reference to partnerships in subsection 3351(a) is intended to include all forms of partnerships, including limited partnerships, limited liability partnerships, and variants that have slightly different names and characteristics from State to State. The section does not apply, however, to receipts from an interest in property that a trust owns as a tenant in common with one or more co-owners, nor would it apply to an interest in a joint venture if, under applicable law, the trust's interest is regarded as that of a tenant in common.

Capital gain dividends. Under the Internal Revenue Code and the Income Tax Regulations, a "capital gain dividend" from a mutual fund or real estate investment trust is the excess of the fund's or trust's net long-term capital gain over its net short-term capital loss. As a result, a capital gain dividend does not include any net short-term capital gain, and cash received by a trust because of a net short-term capital gain is income under this Act.

Reinvested dividends. If a trustee elects (or continues an election made by its predecessor) to reinvest dividends in shares of stock of a distributing corporation or fund, whether evidenced by new certificates or entries on the books of the distributing entity, the new shares would be principal. Making or continuing such an election would be equivalent to deciding under section 3324 to transfer income to principal in order to comply with subsection 3323(b). However, if the trustee makes or continues the election for a reason other than to comply with subsection 3323(b), e.g., to make an investment without incurring brokerage commissions, the trustee should transfer cash from principal to income in an amount equal to the reinvested dividends.

Distribution of property. The 1962 Act describes a number of types of property that would be principal if distributed by a corporation. This becomes unwieldy in a section that applies to both corporations and all other entities. By stating that principal includes the distribution of any property other than money, section 3351 embraces all of the items enumerated in Section 6 of the 1962 Act as well as any other form of nonmonetary distribution not specifically mentioned in that Act.

Partial liquidations. Under subsection (d)(1), any distribution designated by the entity as a partial liquidating distribution is principal regardless of the percentage of total assets that it represents. If a distribution exceeds 20% of the entity's gross assets, the entire distribution is a partial liquidation under subsection (d)(2) whether or not the entity describes it as a partial liquidation. In determining whether a distribution is greater than 20% of the gross assets, the portion of the distribution that does not exceed the amount of income tax that the trustee or a beneficiary must pay on the entity's taxable income is ignored.

Other large distributions. A cash distribution may be quite large (for example, more than 10% but not more than 20% of the entity's gross assets) and have characteristics that suggest it should be treated as principal rather than income. For example, an entity may have received cash from a source other than the conduct of its normal business operations because it sold an investment asset; or because it sold a business asset other than one held for sale to customers in the normal course of its business and did not replace it; or it borrowed a large sum of money and secured the repayment of the loan with a substantial asset; or a principal source of its cash was from assets such as mineral interests, 90% of which would have been allocated to principal if the trust had owned the assets directly. In such a case the trustee, after considering the total return from the portfolio as a whole and the income component of that return, may decide to exercise the power under subsection 3324(a) to make an adjustment between income and principal, subject to the limitations in subsection 3324(c).

Vermont Comment

Character of Receipts. The Vermont Act adds the phrase "including reinvested cash dividends" to subsection 3351(b) in order to make reinvested cash dividends allocated to income, and adds the following language to subsection 3351(c): "excluding reinvested cash dividends, provided that if the trustee may elect between money and other property as a distribution, property so elected and distributed shall retain its character as income." The Vermont Act also adds subdivision 3351(c)(5) specifically allocating capital gains and capital gains distributions to principal.

§ 3352. Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate, in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, section 3351 or 3365 of this title applies to a receipt from the trust.

Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Terms of the distributing trust or estate. Under subsection 3323(a), a trustee is to allocate receipts in accordance with the terms of the recipient trust or, if there is no provision, in accordance with this chapter. However, in determining whether a distribution from another trust or an estate is income or principal, the trustee should also determine what the terms of the distributing trust or estate say about the distribution; for example, whether they direct that the distribution, even though made from the income of the distributing trust or estate, is to be added to principal of the recipient trust. Such a provision should override the terms of this chapter, but if the terms of the recipient trust contain a provision requiring such a distribution to be allocated to income, the trustee may have to obtain a judicial resolution of the conflict between the terms of the two documents.

Investment trusts. An investment entity to which the second sentence of this section applies includes a mutual fund, a common trust fund, a business trust or other entity organized as a trust for the purpose of receiving capital contributed by investors, investing that capital, and managing investment assets, including asset-backed security arrangements to which section 3365 applies. See John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107 Yale L.J. 165 (1997).

§ 3353. Business and other activities conducted by trustee.

  1. If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
  2. A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
  3. Activities for which a trustee may maintain separate accounting records include:
    1. retail, manufacturing, service, and other traditional business activities;
    2. farming;
    3. raising and selling livestock and other animals;
    4. management of rental properties;
    5. extraction of minerals and other natural resources;
    6. timber operations; and
    7. activities to which section 3364 of this title applies.

      Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Purpose and scope. The provisions in section 3353 are intended to give greater flexibility to a trustee who operates a business or other activity in proprietorship form rather than in a wholly-owned corporation (or, where permitted by state law, a single-member limited liability company), and to facilitate the trustee's ability to decide the extent to which the net receipts from the activity should be allocated to income, just as the board of directors of a corporation owned entirely by the trust would decide the amount of the annual dividend to be paid to the trust. It permits a trustee to account for farming or livestock operations, rental properties, oil and gas properties, timber operations, and activities in derivatives and options as though they were held by a separate entity. It is not intended, however, to permit a trustee to account separately for a traditional securities portfolio to avoid the provisions of this Act that apply to such securities.

Section 3353 permits the trustee to account separately for each business or activity for which the trustee determines separate accounting is appropriate. A trustee with a computerized accounting system may account for these activities in a "subtrust"; an individual trustee may continue to use the business and record-keeping methods employed by the decedent or transferor who may have conducted the business under an assumed name. The intent of this section is to give the trustee broad authority to select business record-keeping methods that best suit the activity in which the trustee is engaged.

If a fiduciary liquidates a sole proprietorship or other activity to which section 3353 applies, the proceeds would be added to principal, even though derived from the liquidation of accounts receivable, because the proceeds would no longer be needed in the conduct of the business. If the liquidation occurs during probate or during an income interest's winding up period, none of the proceeds would be income for purposes of section 3331.

Separate accounts. A trustee may or may not maintain separate bank accounts for business activities that are accounted for under section 3353. A professional trustee may decide not to maintain separate bank accounts, but an individual trustee, especially one who has continued a decedent's business practices, may continue the same banking arrangements that were used during the decedent's lifetime. In either case, the trustee is authorized to decide to what extent cash is to be retained as part of the business assets and to what extent it is to be transferred to the trust's general accounts, either as income or principal.

PART 2. RECEIPTS NOT NORMALLY APPORTIONED

§ 3354. Principal receipts.

A trustee shall allocate to principal:

  1. to the extent not allocated to income under this chapter, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
  2. money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this chapter;
  3. amounts recovered from third parties to reimburse the trust because of disbursements described in subdivision 3372(a)(7) of this title or for other reasons to the extent not based on the loss of income;
  4. proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
  5. net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
  6. other receipts as provided in sections 3358-3365 of this title.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Eminent domain awards. Even though the award in an eminent domain proceeding may include an amount for the loss of future rent on a lease, if that amount is not separately stated the entire award is principal. The rule is the same in the 1931 and 1962 Acts.

§ 3355. Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.

Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Application of section 3353. This section applies to the extent that the trustee does not account separately under section 3353 for the management of rental properties owned by the trust.

Receipts that are capital in nature. A portion of the payment under a lease may be a reimbursement of principal expenditures for improvements to the leased property that is characterized as rent for purposes of invoking contractual or statutory remedies for nonpayment. If the trustee is accounting for rental income under section 3355, a transfer from income to reimburse principal may be appropriate under section 3371 to the extent that some of the "rent" is really a reimbursement for improvements. This set of facts could also be a relevant factor for a trustee to consider under subsection 3324(b) in deciding whether and to what extent to make an adjustment between principal and income under subsection 3324(a) after considering the return from the portfolio as a whole.

§ 3356. Obligation to pay money.

  1. An amount received as interest, whether determined at a fixed, variable, or floating rate, on a bond or an obligation to pay money to the fiduciary shall be allocated to income.
  2. Except as provided in subsections (c) and (d) of this section, a fiduciary shall allocate to principal any gain or loss realized upon the sale or maturity of any bond or obligation to pay money to the fiduciary, regardless of how such bond or other obligation was acquired.
  3. A fiduciary shall allocate to income the difference between inventory value or cost and the amount realized upon sale or maturity, if greater, for bonds or other obligations that do not bear interest, regardless of how or when such bond or other obligation was acquired.
  4. For bonds or other obligations that are acquired by a fiduciary subsequent to the time the principal was established and whose cost is greater than their par or maturity value, the fiduciary shall amortize periodically out of income the premium paid and, upon sale or maturity, shall allocate to principal any gain or loss realized thereon.
  5. This section does not apply to a bond or other obligation to which section 3359, 3360, 3361, 3362, 3364, or 3365 of this title applies.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Variable or floating interest rates. The reference in subsection (a) to variable or floating interest rate obligations is intended to clarify that, even though an obligation's interest rate may change from time to time based upon changes in an index or other market indicator, an obligation to pay money containing a variable or floating rate provision is subject to this section and is not to be treated as a derivative financial instrument under section 3364.

Discount obligations. Subsection (b) applies to all obligations acquired at a discount, including short-term obligations such as U.S. Treasury Bills, long-term obligations such as U.S. Savings Bonds, zero-coupon bonds, and discount bonds that pay interest during part, but not all, of the period before maturity. Under subsection (b), the entire increase in value of these obligations is principal when the trustee receives the proceeds from the disposition unless the obligation, when acquired, has a maturity of less than one year. In order to have one rule that applies to all discount obligations, the Act eliminates the provision in the 1962 Act for the payment from principal of an amount equal to the increase in the value of U.S. Series E bonds. The provision for bonds that mature within one year after acquisition by the trustee is derived from the Illinois act. 760 ILCS 15/8 (1996).

Subsection (b) also applies to inflation-indexed bonds - any increase in principal due to inflation after issuance is principal upon redemption if the bond matures more than one year after the trustee acquires it; if it matures within one year, all of the increase, including any attributable to an inflation adjustment, is income.

Effect of section 3324. In deciding whether and to what extent to exercise the power to adjust between principal and income granted by subsection 3324(a), a relevant factor for the trustee to consider is the effect on the portfolio as a whole of having a portion of the assets invested in bonds that do not pay interest currently.

Vermont Comment

Obligation to Pay Money. The Vermont Act here departs from the Uniform Act entirely and adopts Alabama's version of this section in full because the Vermont study committee concluded that Alabama's version provides better guidance with respect to special circumstances.

§ 3357. Insurance policies and similar contracts.

  1. Except as otherwise provided in subsection (b) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
  2. A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to section 3353 of this title, loss of profits from a business.
  3. This section does not apply to a contract to which section 3359 of this title applies.

    Added 2011, No. 114 (Adj. Sess.), § 1.

PART 3. RECEIPTS NORMALLY APPORTIONED

§ 3358. Insubstantial allocations not required.

If a trustee determines that an allocation between principal and income required by section 3359, 3360, 3361, 3362, or 3365 of this title is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in subsection 3324(c) of this title applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in subsection 3324(d) of this title and may be released for the reasons and in the manner described in subsection 3324(e) of this title. An allocation is presumed to be insubstantial if:

  1. the amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent; or
  2. the value of the asset producing the receipt for which the allocation would be made is less than 10 percent of the total value of the trust's assets at the beginning of the accounting period.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

This section is intended to relieve a trustee from making relatively small allocations while preserving the trustee's right to do so if an allocation is large in terms of absolute dollars.

For example, assume that a trust's assets, which include a working interest in an oil well, have a value of $1,000,000; the net income from the assets other than the working interest is $40,000; and the net receipts from the working interest are $400. The trustee may allocate all of the net receipts from the working interest to principal instead of allocating 10%, or $40, to income under section 3361. If the net receipts from the working interest are $35,000, so that the amount allocated to income under section 3361 would be $3,500, the trustee may decide that this amount is sufficiently significant to the income beneficiary that the allocation provided for by section 3361 should be made, even though the trustee is still permitted under section 3358 to allocate all of the net receipts to principal because the $3,500 would increase the net income of $40,000, as determined before making an allocation under section 3361, by less than 10%. Section 3358 will also relieve a trustee from having to allocate net receipts from the sale of trees in a small woodlot between principal and income.

While the allocation to principal of small amounts under this section should not be a cause for concern for tax purposes, allocations are not permitted under this section in circumstances described in subsection 3324(c) to eliminate claims that the power in this section has adverse tax consequences.

§ 3359. Deferred compensation, annuities, and similar payments.

  1. In this section:
    1. "Payment" means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer. For purposes of subsections (d), (e), (f), and (g) of this section, the term also includes any payment from any separate fund, regardless of the reason for the payment.
    2. "Separate fund" includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock ownership plan.
  2. To the extent that payment is characterized as interest, a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.
  3. If no part of a payment is characterized as interest, a dividend, or an equivalent payment and all or part of the payment is required to be made, a trustee shall allocate to income 10 percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not required to be made to the extent that it is made because the trustee exercises a right of withdrawal.
  4. Except as otherwise provided in subsection (e) of this section, subsections (f) and (g) of this section apply and subsections (b) and (c) of this section do not apply in determining the allocation of a payment made from a separate fund to:
    1. a trust to which an election to qualify for a marital deduction under Section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or
    2. a trust that qualifies for the marital deduction under Section 2056(b)(5) of the Internal Revenue Code of 1986, as amended.
  5. Subsections (d), (f), and (g) of this section do not apply if and to the extent that the series of payments would, without the application of subsection (d), qualify for the marital deduction under Section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.
  6. A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this chapter. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.
  7. If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal four percent of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments and determined under Section 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation is made.
  8. This section does not apply to a payment to which section 3360 of this title applies.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Scope. Section 3359 applies to amounts received under contractual arrangements that provide for payments to a third party beneficiary as a result of services rendered or property transferred to the payer. While the right to receive such payments is a liquidating asset of the kind described in section 3360 (i.e., "an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration"), these payment rights are covered separately in section 3359 because of their special characteristics.

Section 3359 applies to receipts from all forms of annuities and deferred compensation arrangements, whether the payment will be received by the trust in a lump sum or in installments over a period of years. It applies to bonuses that may be received over two or three years and payments that may last for much longer periods, including payments from an individual retirement account (IRA), deferred compensation plan (whether qualified or not qualified for special federal income tax treatment), and insurance renewal commissions. It applies to a retirement plan to which the settlor has made contributions, just as it applies to an annuity policy that the settlor may have purchased individually, and it applies to variable annuities, deferred annuities, annuities issued by commercial insurance companies, and "private annuities" arising from the sale of property to another individual or entity in exchange for payments that are to be made for the life of one or more individuals. The section applies whether the payments begin when the payment right becomes subject to the trust or are deferred until a future date, and it applies whether payments are made in cash or in kind, such as employer stock (in-kind payments usually will be made in a single distribution that will be allocated to principal under the second sentence of subsection (c)).

The 1962 Act. Under section 12 of the 1962 Act, receipts from "rights to receive payments on a contract for deferred compensation" are allocated to income each year in an amount "not in excess of 5% per year" of the property's inventory value. While "not in excess of 5%" suggests that the annual allocation may range from zero to 5% of the inventory value, in practice the rule is usually treated as prescribing a 5% allocation. The inventory value is usually the present value of all the future payments, and since the inventory value is determined as of the date on which the payment right becomes subject to the trust, the inventory value, and thus the amount of the annual income allocation, depends significantly on the applicable interest rate on the decedent's date of death. That rate may be much higher or lower than the average long-term interest rate. The amount determined under the 5% formula tends to become fixed and remain unchanged even though the amount received by the trust increases or decreases.

Allocations under subsection 3359(b). Subsection 3359(b) applies to plans whose terms characterize payments made under the plan as dividends, interest, or payments in lieu of dividends or interest. For example, some deferred compensation plans that hold debt obligations or stock of the plan's sponsor in an account for future delivery to the person rendering the services provide for the annual payment to that person of dividends received on the stock or interest received on the debt obligations. Other plans provide that the account of the person rendering the services shall be credited with "phantom" shares of stock and require an annual payment that is equivalent to the dividends that would be received on that number of shares if they were actually issued; or a plan may entitle the person rendering the services to receive a fixed dollar amount in the future and provide for the annual payment of interest on the deferred amount during the period prior to its payment. Under subsection 3359(b), payments of dividends, interest or payments in lieu of dividends or interest under plans of this type are allocated to income; all other payments received under these plans are allocated to principal.

Subsection 3359(b) does not apply to an IRA or an arrangement with payment provisions similar to an IRA. IRAs and similar arrangements are subject to the provisions in subsection 3359(c).

Allocations under subsection 3359(c). The focus of section 3359, for purposes of allocating payments received by a trust to or between principal and income, is on the payment right rather than on assets that may be held in a fund from which the payments are made. Thus, if an IRA holds a portfolio of marketable stocks and bonds, the amount received by the IRA as dividends and interest is not taken into account in determining the principal and income allocation except to the extent that the Internal Revenue Service may require them to be taken into account when the payment is received by a trust that qualifies for the estate tax marital deduction (a situation that is provided for in subsection 3359(d)). An IRA is subject to federal income tax rules that require payments to begin by a particular date and be made over a specific number of years or a period measured by the lives of one or more persons. The payment right of a trust that is named as a beneficiary of an IRA is not a right to receive particular items that are paid to the IRA, but is instead the right to receive an amount determined by dividing the value of the IRA by the remaining number of years in the payment period. This payment right is similar to the right to receive a unitrust amount, which is normally expressed as an amount equal to a percentage of the value of the unitrust assets without regard to dividends or interest that may be received by the unitrust.

An amount received from an IRA or a plan with a payment provision similar to that of an IRA is allocated under subsection 3359(c), which differentiates between payments that are required to be made and all other payments. To the extent that a payment is required to be made (either under federal income tax rules or, in the case of a plan that is not subject to those rules, under the terms of the plan), 10% of the amount received is allocated to income and the balance is allocated to principal. All other payments are allocated to principal because they represent a change in the form of a principal asset; section 3359 follows the rule in subdivision 3354(2), which provides that money or property received from a change in the form of a principal asset be allocated to principal.

Subsection 3359(c) produces an allocation to income that is similar to the allocation under the 1962 Act formula if the annual payments are the same throughout the payment period, and it is simpler to administer. The amount allocated to income under section 3359 is not dependent upon the interest rate that is used for valuation purposes when the decedent dies, and if the payments received by the trust increase or decrease from year to year because the fund from which the payment is made increases or decreases in value, the amount allocated to income will also increase or decrease.

Marital deduction requirements. When an IRA or other retirement arrangement (a "plan") is payable to a marital deduction trust, the IRS treats the plan as a separate property interest that itself must qualify for the marital deduction. IRS Revenue Ruling 2006-26 said that, as written, section 3359 does not cause a trust to qualify for the IRS' safe harbors. Revenue Ruling 2006-26 was limited in scope to certain situations involving IRAs and defined contribution retirement plans. Without necessarily agreeing with the IRS' position in that ruling, the revision to this section is designed to satisfy the IRS' safe harbor and to address concerns that might be raised for similar assets. No IRS pronouncements have addressed the scope of Internal Revenue Code § 2056(b)(7)(C).

Subsection (f) requires the trustee to demand certain distributions if the surviving spouse so requests. The safe harbor of Revenue Ruling 2006-26 requires that the surviving spouse be separately entitled to demand the fund's income (without regard to the income from the trust's other assets) and the income from the other assets (without regard to the fund's income). In any event, the surviving spouse is not required to demand that the trustee distribute all of the fund's income from the fund or from other trust assets. Treas. Reg. § 20.2056(b)-5(f)(8).

Subsection (f) also recognizes that the trustee might not control the payments that the trustee receives and provides a remedy to the surviving spouse if the distributions under subdivision (d)(1) are insufficient.

Subsection (g) addresses situations where, due to lack of information provided by the fund's administrator, the trustee is unable to determine the fund's actual income. The bracketed language is the range approved for unitrust payments by Treas. Reg. § 1.643(b)-1. In determining the value for purposes of applying the unitrust percentage, the trustee would seek to obtain the value of the assets as of the most recent statement of value immediately preceding the beginning of the year. For example, suppose a trust's accounting period is January 1 through December 31. If a retirement plan administrator furnishes information annually each September 30 and declines to provide information as of December 31, then the trustee may rely on the September 30 value to determine the distribution for the following year. For funds whose values are not readily available, subsection (g) relies on Internal Revenue Code section 7520 valuation methods because many funds described in section 3359 are annuities, and one consistent set of valuation principles should apply whether or not the fund is, in fact, an annuity.

Application of section 3324. Subsection 3324(a) gives a trustee who is acting under the prudent investor rule the power to adjust from principal to income if, considering the portfolio as a whole and not just receipts from deferred compensation, the trustee determines that an adjustment is necessary. See example (5) in the comment following section 3324.

§ 3360. Liquidating asset.

  1. As used in this section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to section 3359 of this title, resources subject to section 3361 of this title, timber subject to section 3362 of this title, an activity subject to section 3364 of this title, an asset subject to section 3365 of this title, or any asset for which the trustee establishes a reserve for depreciation under section 3373 of this title.
  2. A trustee shall allocate to income 10 percent of the receipts from a liquidating asset and the balance to principal.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts. Section 11 of the 1962 Act allocates receipts from "property subject to depletion" to income in an amount "not in excess of 5%" of the asset's inventory value. The 1931 Act has a similar 5% rule that applies when the trustee is under a duty to change the form of the investment. The 5% rule imposes on a trust the obligation to pay a fixed annuity to the income beneficiary until the asset is exhausted. Under both the 1931 and 1962 Acts the balance of each year's receipts is added to principal. A fixed payment can produce unfair results. The remainder beneficiary receives all of the receipts from unexpected growth in the asset, e.g., if royalties on a patent or copyright increase significantly. Conversely, if the receipts diminish more rapidly than expected, most of the amount received by the trust will be allocated to income and little to principal. Moreover, if the annual payments remain the same for the life of the asset, the amount allocated to principal will usually be less than the original inventory value. For these reasons, section 3360 abandons the annuity approach under the 5% rule.

Lottery payments. The reference in subsection (a) to rights to receive payments under an arrangement that does not provide for the payment of interest includes state lottery prizes and similar fixed amounts payable over time that are not deferred compensation arrangements covered by section 3359.

§ 3361. Minerals, water, and other natural resources.

  1. To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:
    1. If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.
    2. If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.
    3. If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, 90 percent must be allocated to principal and the balance to income.
    4. If an amount is received from a working interest or any other interest not provided for in subdivision (1), (2), or (3) of this subsection, 90 percent of the net amount received must be allocated to principal and the balance to income.
  2. An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, 90 percent of the amount must be allocated to principal and the balance to income.
  3. This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
  4. If a trust owns an interest in minerals, water, or other natural resources on July 1, 2012, the trustee may allocate receipts from the interest as provided in this chapter or in the manner used by the trustee prior to July 1, 2012. If the trust acquires an interest in minerals, water, or other natural resources after July 1, 2012, the trustee shall allocate receipts from the interest as provided in this chapter.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts. The 1962 Act allocates to principal as a depletion allowance, 27-1/2% of the gross receipts, but not more than 50% of the net receipts after paying expenses. The Internal Revenue Code no longer provides for a 27-1/2% depletion allowance, although the major oil producing States have retained the 27-1/2% provision in their principal and income acts (Texas amended its Act in 1993, but did not change the depletion provision). Section 9 of the 1931 Act allocates all of the net proceeds received as consideration for the "permanent severance of natural resources from the lands" to principal.

Section 3361 allocates 90% of the net receipts to principal and 10% to income. A depletion provision that is tied to past or present Code provisions is undesirable because it causes a large portion of the oil and gas receipts to be paid out as income. As wells are depleted, the amount received by the income beneficiary falls drastically. Allocating a larger portion of the receipts to principal enables the trustee to acquire other income producing assets that will continue to produce income when the mineral reserves are exhausted.

Application of sections 3353 and 3358. This section applies to the extent that the trustee does not account separately for receipts from minerals and other natural resources under section 3353 or allocate all of the receipts to principal under section 3358.

Open mine doctrine. The purpose of subsection 3361(c) is to abolish the "open mine doctrine" as it may apply to the rights of an income beneficiary and a remainder beneficiary in receipts from the production of minerals from land owned or leased by a trust. Instead, such receipts are to be allocated to or between principal and income in accordance with the provisions of this Act. For a discussion of the open mine doctrine, see generally 3A Austin W. Scott & William F. Fratcher, The Law of Trusts § 239.3 (4th ed. 1988), and Nutter v. Stockton, 626 P.2d 861 (Okla. 1981).

Effective date provision. Section 9(b) of the 1962 Act provides that the natural resources provision does not apply to property interests held by the trust on the effective date of the Act, which reflects concerns about the constitutionality of applying a retroactive administrative provision to interests in real estate, based on the opinion in the Oklahoma case of Franklin v. Margay Oil Corporation, 153 P.2d 486, 501 (Okla. 1944). Subsection 3361(d) permits a trustee to use either the method provided for in this Act or the method used before the Act takes effect. Lawyers in jurisdictions other than Oklahoma may conclude that retroactivity is not a problem as to property situated in their states, and this provision permits trustees to decide, based on advice from counsel in states whose law may be different from that of Oklahoma, whether they may apply this provision retroactively if they conclude that to do so is in the best interests of the beneficiaries.

If the property is in a state other than the state where the trust is administered, the trustee must be aware that the law of the property's situs may control this question. The outcome turns on a variety of questions: whether the terms of the trust specify that the law of a state other than the situs of the property shall govern the administration of the trust, and whether the courts will follow the terms of the trust; whether the trust's asset is the land itself or a leasehold interest in the land (as it frequently is with oil and gas property); whether a leasehold interest or its proceeds should be classified as real property or personal property, and if as personal property, whether applicable state law treats it as a movable or an immovable for conflict of laws purposes. See 5A Austin W. Scott & William F. Fratcher, The Law of Trusts § 648 at 531, 533-534; § 657 at 600 (4th ed. 1989).

§ 3362. Timber.

  1. To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:
    1. to income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
    2. to principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;
    3. to or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in subdivision (1) and (2) of this subsection; or
    4. to principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to subdivision (1), (2), or (3) of this subsection.
  2. In determining net receipts to be allocated pursuant to subsection (a) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion.
  3. This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it become subject to the trust.
  4. If a trust owns an interest in timberland on July 1, 2012, the trustee may allocate net receipts from the sale of timber and related products as provided in this chapter or in the manner used by the trustee before July 1, 2012. If the trust acquires an interest in timberland after July 1, 2012, the trustee shall allocate net receipts from the sale of timber and related products as provided in this chapter.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Scope of section. The rules in section 3362 are intended to apply to net receipts from the sale of trees and by-products from harvesting and processing trees without regard to the kind of trees that are cut or whether the trees are cut before or after a particular number of years of growth. The rules apply to the sale of trees that are expected to produce lumber for building purposes, trees sold as pulpwood, and Christmas and other ornamental trees. Subsection (a) applies to net receipts from property owned by the trustee and property leased by the trustee. The Act is not intended to prevent a tenant in possession of the property from using wood that he cuts on the property for personal, noncommercial purposes, such as a Christmas tree, firewood, mending old fences or building new fences, or making repairs to structures on the property.

Under subsection (a), the amount of net receipts allocated to income depends upon whether the amount of timber removed is more or less than the rate of growth. The method of determining the amount of timber removed and the rate of growth is up to the trustee, based on methods customarily used for the kind of timber involved.

Application of sections 3353 and 3368. This section applies to the extent that the trustee does not account separately for net receipts from the sale of timber and related products under section 3353 or allocate all of the receipts to principal under section 3368. The option to account for net receipts separately under section 3353 takes into consideration the possibility that timber harvesting operations may have been conducted before the timber property became subject to the trust, and that it may make sense to continue using accounting methods previously established for the property. It also permits a trustee to use customary accounting practices for timber operations even if no harvesting occurred on the property before it became subject to the trust.

§ 3363. Property not productive of income.

  1. If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under section 3324 of this title and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by subsection 3324(a) of this title. The trustee may decide which action or combination of actions to take.
  2. In cases not governed by subsection (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts' Conflict with uniform Prudent Investor Act. Section 2(b) of the Uniform Prudent Investor Act provides that "[a] trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole . . . ." The underproductive property provisions in Section 12 of the 1962 Act and Section 11 of the 1931 Act give the income beneficiary a right to receive a portion of the proceeds from the sale of underproductive property as "delayed income." In each Act the provision applies on an asset by asset basis and not by taking into consideration the trust portfolio as a whole, which conflicts with the basic precept in Section 2(b) of the Prudent Investor Act. Moreover, in determining the amount of delayed income, the prior Acts do not permit a trustee to take into account the extent to which the trustee may have distributed principal to the income beneficiary, under principal invasion provisions in the terms of the trust, to compensate for insufficient income from the unproductive asset. Under subdivision 3324(b)(7) of this Act, a trustee must consider prior distributions of principal to the income beneficiary in deciding whether and to what extent to exercise the power to adjust conferred by subsection 3324(a).

Duty to make property productive of income. In order to implement the Uniform Prudent Investor Act, this Act abolishes the right to receive delayed income from the sale proceeds of an asset that produces little or no income, but it does not alter existing state law regarding the income beneficiary's right to compel the trustee to make property productive of income. As the law continues to develop in this area, the duty to make property productive of current income in a particular situation should be determined by taking into consideration the performance of the portfolio as a whole and the extent to which a trustee makes principal distributions to the income beneficiary under the terms of the trust and adjustments between principal and income under section 3324.

Trusts for which the value of the right to receive income is important for tax reasons may be affected by Treas. Reg. § 1.7520-3(b)(2)(v) Example (1), § 20.7520-3(b)(2)(v) Examples (1) and (2), and § 25.7520-3(b)(2)(v) Examples (1) and (2), which provide that if the income beneficiary does not have the right to compel the trustee to make the property productive, the income interest is considered unproductive and may not be valued actuarially under those sections.

Marital deduction trusts. Subsection (a) draws on language in Treas. Reg. § 20.2056(b)-5(f)(4) and (5) to enable a trust for a spouse to qualify for a marital deduction if applicable state law is unclear about the spouse's right to compel the trustee to make property productive of income. The trustee should also consider the application of section 3324 and the provisions of Restatement of Trusts 3d: Prudent Investor Rule § 240, at 186, app. § 240, at 252 (1992). Example (6) in the comment to section 3324 describes a situation involving the payment from income of carrying charges on unproductive real estate in which section 3324 may apply.

Once the two conditions have occurred - insufficient beneficial enjoyment from the property and the spouse's demand that the trustee take action under this section - the trustee must act; but instead of the formulaic approach of the 1962 Act, which is triggered only if the trustee sells the property, this Act permits the trustee to decide whether to make the property productive of income, convert it, transfer funds from principal to income, or to take some combination of those actions. The trustee may rely on the power conferred by subsection 3324(a) to adjust from principal to income if the trustee decides that it is not feasible or appropriate to make the property productive of income or to convert the property. Given the purpose of section 3363, the power under subsection 3324(a) would be exercised to transfer principal to income and not to transfer income to principal.

Section 3363 does not apply to a so-called "estate" trust, which will qualify for the marital deduction, even though the income may be accumulated for a term of years or for the life of the surviving spouse, if the terms of the trust require the principal and undistributed income to be paid to the surviving spouse's estate when the spouse dies. Treas. Reg. § 20.2056(c)-2(b)(1)(iii).

§ 3364. Derivatives and options.

  1. As used in this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
  2. To the extent that a trustee does not account under section 3353 of this title for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
  3. If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Scope and application. It is difficult to predict how frequently and to what extent trustees will invest directly in derivative financial instruments rather than participating indirectly through investment entities that may utilize these instruments in varying degrees. If the trust participates in derivatives indirectly through an entity, an amount received from the entity will be allocated under section 3351 and not section 3364. If a trustee invests directly in derivatives to a significant extent, the expectation is that receipts and disbursements related to derivatives will be accounted for under section 3353; if a trustee chooses not to account under section 3353, subsection 3364(b) provides the default rule. Certain types of option transactions in which trustees may engage are dealt with in subsection (c) to distinguish those transactions from ones involving options that are embedded in derivative financial instruments.

Definition of "derivative". "Derivative" is a difficult term to define because new derivatives are invented daily as dealers tailor their terms to achieve specific financial objectives for particular clients. Since derivatives are typically contract-based, a derivative can probably be devised for almost any set of objectives if another party can be found who is willing to assume the obligations required to meet those objectives.

The most comprehensive definition of derivative is in the Exposure Draft of a Proposed Statement of Financial Accounting Standards titled "Accounting for Derivative and Similar Financial Instruments and for Hedging Activities," which was released by the Financial Accounting Standards Board (FASB) on June 20, 1996 (No. 162-B). The definition in subsection 3364(a) is derived in part from the FASB definition. The purpose of the definition in subsection (a) is to implement the substantive rule in subsection (b) that provides for all receipts and disbursements to be allocated to principal to the extent the trustee elects not to account for transactions in derivatives under section 3353. As a result, it is much shorter than the FASB definition, which serves much more ambitious objectives.

A derivative is frequently described as including futures, forwards, swaps and options, terms that also require definition, and the definition in this Act avoids these terms. FASB used the same approach, explaining in paragraph 65 of the Exposure Draft:

The definition of derivative financial instrument in this Statement includes those financial instruments generally considered to be derivatives, such as forwards, futures, swaps, options, and similar instruments. The Board considered defining a derivative financial instrument by merely referencing those commonly understood instruments, similar to paragraph 5 of Statement 119, which says that ". . . a derivative financial instrument is a futures, forward, swap, or option contract, or other financial instrument with similar characteristics." However, the continued development of financial markets and innovative financial instruments could ultimately render a definition based on examples inadequate and obsolete. The Board, therefore, decided to base the definition of a derivative financial instrument on a description of the common characteristics of those instruments in order to accommodate the accounting for newly developed derivatives. (Footnote omitted.)

Marking to market. A gain or loss that occurs because the trustee marks securities to market or to another value during an accounting period is not a transaction in a derivative financial instrument that is income or principal under the Act - only cash receipts and disbursements, and the receipt of property in exchange for a principal asset, affect a trust's principal and income accounts.

Receipt of property other than cash. If a trustee receives property other than cash upon the settlement of a derivatives transaction, that property would be principal under subdivision 3354(2).

Options. Options to which subsection (c) applies include an option to purchase real estate owned by the trustee and a put option purchased by a trustee to guard against a drop in value of a large block of marketable stock that must be liquidated to pay estate taxes. Subsection (c) would also apply to a continuing and regular practice of selling call options on securities owned by the trust if the terms of the option require delivery of the securities. It does not apply if the consideration received or given for the option is something other than cash or property, such as cross-options granted in a buy-sell agreement between owners of an entity.

§ 3365. Asset-backed securities.

  1. As used in this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which section 3351 or 3359 of this title applies.
  2. If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
  3. If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Scope of section. Typical asset-backed securities include arrangements in which debt obligations such as real estate mortgages, credit card receivables and auto loans are acquired by an investment trust and interests in the trust are sold to investors. The source for payments to an investor is the money received from principal and interest payments on the underlying debt. An asset-backed security includes an "interest only" or a "principal only" security that permits the investor to receive only the interest payments received from the bonds, mortgages or other assets that are the collateral for the asset-backed security, or only the principal payments made on those collateral assets. An asset-backed security also includes a security that permits the investor to participate in either the capital appreciation of an underlying security or in the interest or dividend return from such a security, such as the "Primes" and "Scores" issued by Americus Trust. An asset-backed security does not include an interest in a corporation, partnership, or an investment trust described in the comment to section 3352, whose assets consist significantly or entirely of investment assets. Receipts from an instrument that do not come within the scope of this section or any other section of the Act would be allocated entirely to principal under the rule in subdivision 3323(a)(4), and the trustee may then consider whether and to what extent to exercise the power to adjust in section 3324, taking into account the return from the portfolio as whole and other relevant factors.

Subchapter 5. Allocation of Disbursements During Administration of Trust

§ 3371. Disbursements from income.

A trustee shall make the following disbursements from income to the extent that they are not disbursements to which subdivision 3331(2)(B) or (C) of this title applies:

  1. one-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;
  2. one-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
  3. all of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and
  4. recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Trustee fees. The regular compensation of a trustee or the trustee's agent includes compensation based on a percentage of either principal or income or both.

Insurance premiums. The reference in subdivision (4) to "recurring" premiums is intended to distinguish premiums paid annually for fire insurance from premiums on title insurance, each of which covers the loss of a principal asset. Title insurance premiums would be a principal disbursement under subdivision 3372(a)(5).

Regularly recurring taxes. The reference to "regularly recurring taxes assessed against principal" includes all taxes regularly imposed on real property and tangible and intangible personal property.

§ 3372. Disbursements from principal.

  1. A trustee shall make the following disbursements from principal:
    1. the remaining one-half of the disbursements described in subdivisions 3371(1) and (2) of this title;
    2. all of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;
    3. payments on the principal of a trust debt;
    4. expenses that extend the life of trust property or that change the form of principal to an improvement or accretion to another item of trust property;
    5. expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
    6. premiums paid on a policy of insurance not described in subdivision 3371(4) of this title of which the trust is the owner and beneficiary;
    7. estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
    8. disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.
  2. If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Environmental expenses. All environmental expenses are payable from principal, subject to the power of the trustee to transfer funds to principal from income under section 3374. However, the Drafting Committee decided that it was not necessary to broaden this provision to cover other expenditures made under compulsion of governmental authority. See generally the annotation at 43 A.L.R.4th 1012 (Duty as Between Life Tenant and Remainderman with Respect to Cost of Improvements or Repairs Made Under Compulsion of Governmental Authority).

Environmental expenses paid by a trust are to be paid from principal under subdivision 3372(a)(7) on the assumption that they will usually be extraordinary in nature. Environmental expenses might be paid from income if the trustee is carrying on a business that uses or sells toxic substances, in which case environmental cleanup costs would be a normal cost of doing business and would be accounted for under section 3353. In accounting under that section, environmental costs will be a factor in determining how much of the net receipts from the business is trust income. Paying all other environmental expenses from principal is consistent with this Act's approach regarding receipts - when a receipt is not clearly a current return on a principal asset, it should be added to principal because over time both the income and remainder beneficiaries benefit from this treatment. Here, allocating payments required by environmental laws to principal imposes the detriment of those payments over time on both the income and remainder beneficiaries.

Under subsections 3374(a) and subdivision 3374(b)(5), a trustee who makes or expects to make a principal disbursement for an environmental expense described in subdivision 3372(a)(7) is authorized to transfer an appropriate amount from income to principal to reimburse principal for disbursements made or to provide a reserve for future principal disbursements.

The first part of subdivision 3372(a)(7) is based upon the definition of an "environmental remediation trust" in Treas. Reg. § 301.7701-4(e) (as amended in 1996). This is not because the Act applies to an environmental remediation trust, but because the definition is a useful and thoroughly vetted description of the kinds of expenses that a trustee owning contaminated property might incur. Expenses incurred to comply with environmental laws include the cost of environmental consultants, administrative proceedings and burdens of every kind imposed as the result of an administrative or judicial proceeding, even though the burden is not formally characterized as a penalty.

Title proceedings. Disbursements that are made to protect a trust's property, referred to in subdivision 3372(a)(4), include an "action to assure title" that is mentioned in Section 13(c)(2) of the 1962 Act.

Insurance premiums. Insurance premiums referred to in subdivision 3372(a)(5) include title insurance premiums. They also include premiums on life insurance policies owned by the trust, which represent the trust's periodic investment in the insurance policy. There is no provision in the 1962 Act for life insurance premiums.

Taxes. Generation-skipping transfer taxes are payable from principal under subsection (a)(6).

Vermont Comment

Disbursements from principal. The Vermont Act supplements this section in subdivision (4) by adding: "expenses that extend the life of trust property or that change the form of principal to an improvement or accretion to another item of trust property."

§ 3373. Transfers from income to principal for depreciation.

  1. As used in this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.
  2. A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation in the following instances:
    1. of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
    2. during the administration of a decedent's estate; or
    3. under this section if the trustee is accounting under section 3353 of this title for the business or activity in which the asset is used.
  3. An amount transferred to principal need not be held as a separate fund.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Prior Acts. The 1931 Act has no provision for depreciation. Section 13(a)(2) of the 1962 Act provides that a charge shall be made against income for "... a reasonable allowance for depreciation on property subject to depreciation under generally accepted accounting principles ... ." That provision has been resisted by many trustees, who do not provide for any depreciation for a variety of reasons. One reason relied upon is that a charge for depreciation is not needed to protect the remainder beneficiaries if the value of the land is increasing; another is that generally accepted accounting principles may not require depreciation to be taken if the property is not part of a business. The Drafting Committee concluded that the decision to provide for depreciation should be discretionary with the trustee. The power to transfer funds from income to principal that is granted by this section is a discretionary power of administration referred to in subsection 3323(b), and in exercising the power a trustee must comply with subsection 3323(b).

One purpose served by transferring cash from income to principal for depreciation is to provide funds to pay the principal of an indebtedness secured by the depreciable property. Subdivision 3374(b)(4) permits the trustee to transfer additional cash from income to principal for this purpose to the extent that the amount transferred from income to principal for depreciation is less than the amount of the principal payments.

Vermont Comment:

Transfers from income to principal for depreciation. The Vermont Act adds the phrase "in the following instances" to subsection (b) for purposes of clarity.

§ 3374. Transfers from income to reimburse principal.

  1. If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
  2. Principal disbursements to which subsection (a) of this section applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
    1. an amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
    2. a capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
    3. disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;
    4. periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
    5. disbursements described in subdivision 3372(a)(7) of this title.
  3. If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a) of this section.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

2019. Deleted ", but not limited to," following "including" in accordance with 2013, No. 5 , § 4.

Comment

Prior Acts. The sources of section 3374 are Section 13(b) of the 1962 Act, which permits a trustee to "regularize distributions," if charges against income are unusually large, by using "reserves or other reasonable means" to withhold sums from income distributions; Section 13(c)(3) of the 1962 Act, which authorizes a trustee to establish an allowance for depreciation out of income if principal is used for extraordinary repairs, capital improvements and special assessments; and Section 12(3) of the 1931 Act, which permits the trustee to spread income expenses of unusual amount "throughout a series of years." Section 3374 contains a more detailed enumeration of the circumstances in which this authority may be used, and includes in subdivision (b)(4) the express authority to use income to make principal payments on a mortgage if the depreciation charge against income is less than the principal payments on the mortgage.

§ 3375. Income taxes.

  1. A tax required to be paid by a trustee based on receipts allocated to income shall be paid from income.
  2. A tax required to be paid by a trustee based on receipts allocated to principal shall be paid from principal, even if the tax is called an income tax by the taxing authority.
  3. A tax required to be paid by a trustee on the trust's share of an entity's taxable income shall be paid:
    1. from income to the extent that receipts from the entity are allocated only to income;
    2. from principal to the extent that receipts from the entity are allocated only to principal;
    3. proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and
    4. from principal to the extent that the tax exceeds the total receipts from the entity.
  4. After applying subsections (a) through (c) of this section, the trustee shall adjust income or principal receipts to the extent that the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Taxes on undistributed entity taxable income. When a trust owns an interest in a pass-through entity, such as a partnership or S corporation, it must report its share of the entity's taxable income regardless of how much the entity distributes to the trust. Whether the entity distributes more or less than the trust's tax on its share of the entity's taxable income, the trust must pay the taxes and allocate them between income and principal.

Subsection (c) requires the trust to pay the taxes on its share of an entity's taxable income from income or principal receipts to the extent that receipts from the entity are allocable to each. This assures the trust a source of cash to pay some or all of the taxes on its share of the entity's taxable income. Subsection (d) recognizes that, except in the case of an Electing Small Business Trust (ESBT), a trust normally receives a deduction for amounts distributed to a beneficiary. Accordingly, subsection (d) requires the trust to increase receipts payable to a beneficiary as determined under subsection (c) to the extent the trust's taxes are reduced by distributing those receipts to the beneficiary.

Because the trust's taxes and amounts distributed to a beneficiary are interrelated, the trust may be required to apply a formula to determine the correct amount payable to a beneficiary. This formula should take into account that each time a distribution is made to a beneficiary, the trust taxes are reduced and amounts distributable to a beneficiary are increased. The formula assures that after deducting distributions to a beneficiary, the trust has enough to satisfy its taxes on its share of the entity's taxable income as reduced by distributions to beneficiaries.

Example (1) - Trust T receives a Schedule K-1 from Partnership P reflecting taxable income of $1 million. Partnership P distributes $100,000 to T, which allocates the receipts to income. Both Trust T and income Beneficiary B are in the 35 percent tax bracket. Trust T's tax on $1 million of taxable income is $350,000. Under subsection (c), T's tax must be paid from income receipts because receipts from the entity are allocated only to income. Therefore, T must apply the entire $100,000 of income receipts to pay its tax. In this case, Beneficiary B receives nothing.

Example (2) - Trust T receives a Schedule K-1 from Partnership P reflecting taxable income of $1 million. Partnership P distributes $500,000 to T, which allocates the receipts to income. Both Trust T and income Beneficiary B are in the 35 percent tax bracket. Trust T's tax on $1 million of taxable income is $350,000. Under subsection (c), T's tax must be paid from income receipts because receipts from P are allocated only to income. Therefore, T uses $350,000 of the $500,000 to pay its taxes and distributes the remaining $150,000 to B. The $150,000 payment to B reduces T's taxes by $52,500, which it must pay to B. But the $52,500 further reduces T's taxes by $18,375, which it also must pay to B. In fact, each time T makes a distribution to B, its taxes are further reduced, causing another payment to be due B.

Alternatively, T can apply the following algebraic formula to determine the amount payable to B:

D =(C-R*K)/(1-R)

D = Distribution to income beneficiary

C = Cash paid by the entity to the trust

R = tax rate on income

K = entity's K-1 taxable income

Applying the formula to Example (2) above, Trust T must pay $230,769 to B so that after deducting the payment, T has exactly enough to pay its tax on the remaining taxable income from P.

Taxable Income per K-1 1,000, 000

Payment to beneficiary 230,769

Trust Taxable Income 769,231

35 percent tax 269,231

Partnership Distribution 500,000

Fiduciary's Tax Liability (269,231)

Payable to the Beneficiary 230,769

In addition, B will report $230,769 on his or her own personal income tax return, paying taxes of $80,769. Because Trust T withheld $269,231 to pay its taxes and B paid $80,769 taxes of its own, B bore the entire $350,000 tax burden on the $1 million of entity taxable income, including the $500,000 that the entity retained that presumably increased the value of the trust's investment entity.

If a trustee determines that it is appropriate to so, it should consider exercising the discretion granted in section 3376 to adjust between income and principal. Alternatively, the trustee may exercise the power to adjust under section 3324 to the extent it is available and appropriate under the circumstances, including whether a future distribution from the entity that would be allocated to principal should be reallocated to income because the income beneficiary already bore the burden of taxes on the reinvested income. In exercising the power, the trust should consider the impact that future distributions will have on any current adjustments.

§ 3376. Adjustments between principal and income because of taxes.

  1. A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:
    1. elections and decisions, other than those described in subsection (b) of this section, that the fiduciary makes from time to time regarding tax matters;
    2. an income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
    3. subject to subsection (b) of this section, the ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.
  2. A trustee shall make an adjustment from principal to income to compensate an income beneficiary for taxes paid or payable by the income beneficiary in respect of the taxable income of an entity that is taxable to the income beneficiary but that is distributed to the trustee and allocated to principal.
  3. If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement shall equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced shall be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.

    Added 2011, No. 114 (Adj. Sess.), § 1.

History

Comment

Discretionary adjustments. Subsection 3376(a) permits the fiduciary to make adjustments between income and principal because of tax law provisions. It would permit discretionary adjustments in situations like these: (1) A fiduciary elects to deduct administration expenses that are paid from principal on an income tax return instead of on the estate tax return; (2) a distribution of a principal asset to a trust or other beneficiary causes the taxable income of an estate or trust to be carried out to the distributee and relieves the persons who receive the income of any obligation to pay income tax on the income; or (3) a trustee realizes a capital gain on the sale of a principal asset and pays a large state income tax on the gain, but under applicable federal income tax rules the trustee may not deduct the state income tax payment from the capital gain in calculating the trust's federal capital gain tax, and the income beneficiary receives the benefit of the deduction for state income tax paid on the capital gain. See generally Joel C. Dobris, Limits on the Doctrine of Equitable Adjustment in Sophisticated Postmortem Tax Planning, 66 Iowa L. Rev. 273 (1981).

Subdivision 3376(a)(3) applies to a qualified Subchapter S trust (QSST) whose income beneficiary is required to include a pro rata share of the S corporation's taxable income in his return. If the QSST does not receive a cash distribution from the corporation that is large enough to cover the income beneficiary's tax liability, the trustee may distribute additional cash from principal to the income beneficiary. In this case the retention of cash by the corporation benefits the trust principal. This situation could occur if the corporation's taxable income includes capital gain from the sale of a business asset and the sale proceeds are reinvested in the business instead of being distributed to shareholders.

Mandatory adjustment. Subsection (b) provides for a mandatory adjustment from income to principal to the extent needed to preserve an estate tax marital deduction or charitable contributions deduction. It is derived from New York's EPTL § 11-1.2(A), which requires principal to be reimbursed by those who benefit when a fiduciary elects to deduct administration expenses on an income tax return instead of the estate tax return. Unlike the New York provision, subsection (b) limits a mandatory reimbursement to cases in which a marital deduction or a charitable contributions deduction is reduced by the payment of additional estate taxes because of the fiduciary's income tax election. It is intended to preserve the result reached in Estate of Britenstool v. Commissioner, 46 T.C. 711 (1966), in which the Tax Court held that a reimbursement required by the predecessor of EPTL § 11-1.2(A) resulted in the estate receiving the same charitable contributions deduction it would have received if the administration expenses had been deducted for estate tax purposes instead of for income tax purposes. Because a fiduciary will elect to deduct administration expenses for income tax purposes only when the income tax reduction exceeds the estate tax reduction, the effect of this adjustment is that the principal is placed in the same position it would have occupied if the fiduciary had deducted the expenses for estate tax purposes, but the income beneficiaries receive an additional benefit. For example, if the income tax benefit from the deduction is $30,000 and the estate tax benefit would have been $20,000, principal will be reimbursed $20,000 and the net benefit to the income beneficiaries will be $10,000.

Irrevocable grantor trusts. Under sections 671-679 of the Internal Revenue Code (the "grantor trust" provisions), a person who creates an irrevocable trust for the benefit of another person may be subject to tax on the trust's income or capital gains, or both, even though the settlor is not entitled to receive any income or principal from the trust. Because this is now a well-known tax result, many trusts have been created to produce this result, but there are also trusts that are unintentionally subject to this rule. The Act does not require or authorize a trustee to distribute funds from the trust to the settlor in these cases because it is difficult to establish a rule that applies only to trusts where this tax result is unintended and does not apply to trusts where the tax result is intended. Settlors who intend this tax result rarely state it as an objective in the terms of the trust, but instead rely on the operation of the tax law to produce the desired result. As a result it may not be possible to determine from the terms of the trust if the result was intentional or unintentional. If the drafter of such a trust wants the trustee to have the authority to distribute principal or income to the settlor to reimburse the settlor for taxes paid on the trust's income or capital gains, such a provision should be placed in the terms of the trust. In some situations the Internal Revenue Service may require that such a provision be placed in the terms of the trust as a condition to issuing a private letter ruling.

Vermont Comments

Adjustments between principal and income because of taxes. The Vermont Act adds subsection (b), which is based on language contained in Maryland's version of the Act. Subsections (a) and (c) are unchanged.

CHAPTER 119. UNIFORM MANAGEMENT OF INSTITUTIONAL FUNDS ACT

Sec.

History

Short title. 1973, No. 59 , § 4, provided: "This act [which added this chapter] may be cited as the 'Uniform Management of Institutional Funds Act'".

Severability of enactment. 1973, No. 59 , § 2, provided: "If any provision of this act [which added this chapter] or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable."

Construction. 1973, No. 59 , § 3, provided: "This act [which added this chapter] shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this act among those states which enact it."

§§ 3401-3407. Repealed. 2008, No. 9, § 1, eff. May 5, 2009.

History

Former §§ 3401-3407, relating to the Uniform Management of Institutional Funds Act, was derived from 1973, No. 59 , § 1 and 3407 was amended by 1973, No. 193 (Adj. Sess.), § 3.

CHAPTER 120. UNIFORM PRUDENT MANAGEMENT OF INSTITUTIONAL FUNDS ACT

Sec.

§ 3411. Short title.

This chapter may be cited as the Uniform Prudent Management of Institutional Funds Act.

Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3412. Definitions.

In this chapter:

  1. "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.
  2. "Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use.
  3. "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.
  4. "Institution" means:
    1. a person, other than an individual, organized and operated exclusively for charitable purposes;
    2. a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or
    3. a trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.
  5. "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include:
    1. program-related assets;
    2. a fund held for an institution by a trustee that is not an institution; or
    3. a fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.
  6. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  7. "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.
  8. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

    Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3413. Standard of conduct in managing and investing institutional fund.

  1. Subject to the intent of a donor expressed in a gift instrument, an institution, in managing and investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund.
  2. In addition to complying with the duty of loyalty imposed by law other than this chapter, each person responsible for managing and investing an institutional fund shall manage and invest the fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances.
  3. In managing and investing an institutional fund, an institution:
    1. may incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution, and the skills available to the institution; and
    2. shall make a reasonable effort to verify facts relevant to the management and investment of the fund.
  4. An institution may pool two or more institutional funds for purposes of management and investment.
  5. Except as otherwise provided by a gift instrument, the following rules apply:
    1. In managing and investing an institutional fund, the following factors, if relevant, must be considered:
      1. general economic conditions;
      2. the possible effect of inflation or deflation;
      3. the expected tax consequences, if any, of investment decisions or strategies;
      4. the role that each investment or course of action plays within the overall investment portfolio of the fund;
      5. the expected total return from income and the appreciation of investments;
      6. other resources of the institution;
      7. the needs of the institution and the fund to make distributions and to preserve capital; and
      8. an asset's special relationship or special value, if any, to the charitable purposes of the institution.
    2. Management and investment decisions about an individual asset must be made not in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the fund and to the institution.
    3. Except as otherwise provided by law other than this chapter, an institution may invest in any kind of property or type of investment consistent with this section.
    4. An institution shall diversify the investments of an institutional fund unless the institution reasonably determines that, because of special circumstances, the purposes of the fund are better served without diversification.
    5. Within a reasonable time after receiving property, an institution shall make and carry out decisions concerning the retention or disposition of the property or to rebalance a portfolio in order to bring the institutional fund into compliance with the purposes, terms, and distribution requirements of the institution as necessary to meet other circumstances of the institution and the requirements of this chapter.
    6. A person that has special skills or expertise, or is selected in reliance upon the person's representation that the person has special skills or expertise, has a duty to use those skills or that expertise in managing and investing institutional funds.

      Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3414. Appropriation for expenditure or accumulation of endowment fund; rules of construction.

  1. Subject to the intent of a donor expressed in the gift instrument, an institution may appropriate for expenditure or accumulate so much of an endowment fund as the institution determines is prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund are donor-restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors:
    1. the duration and preservation of the endowment fund;
    2. the purposes of the institution and the endowment fund;
    3. general economic conditions;
    4. the possible effect of inflation or deflation;
    5. the expected total return from income and the appreciation of investments;
    6. other resources of the institution; and
    7. the investment policy of the institution.
  2. To limit the authority to appropriate for expenditure or accumulate under subsection (a) of this section, a gift instrument must specifically state the limitation.
  3. Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only "income," "interest," "dividends," or "rents, issues, or profits," or "to preserve the principal intact," or words of similar import:
    1. create an endowment fund of permanent duration unless other language in the gift instrument limits the duration or purpose of the fund; and
    2. do not otherwise limit the authority to appropriate for expenditure or accumulate under subsection (a) of this section.

      Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3415. Delegation of management and investment functions.

  1. Subject to any specific limitation set forth in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:
    1. selecting an agent;
    2. establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and
    3. periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
  2. In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.
  3. An institution that complies with subsection (a) of this section is not liable for the decisions or actions of an agent to which the function was delegated.
  4. By accepting delegation of a management or investment function from an institution that is subject to the laws of this State, an agent submits to the jurisdiction of the courts of this State in all proceedings arising from or related to the delegation or the performance of the delegated function.
  5. An institution may delegate management and investment functions to its committees, officers, or employees as authorized by law of this State other than this chapter.

    Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3416. Release or modification of restrictions on management, investment, or purpose.

  1. If the donor consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow a fund to be used for a purpose other than a charitable purpose of the institution.
  2. The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of the fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the fund. The institution shall notify the Attorney General of the application, and the Attorney General must be given an opportunity to be heard. To the extent practicable, any modification must be made in accordance with the donor's probable intention.
  3. If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the Attorney General of the application, and the Attorney General must be given an opportunity to be heard.
  4. If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, 60 days after notification to the Attorney General, may release or modify the restriction, in whole or in part, if:
    1. the institutional fund subject to the restriction has a total value of less than $50,000.00;
    2. more than 20 years have elapsed since the fund was established; and
    3. the institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument.

      Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3417. Reviewing compliance.

Compliance with this chapter is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight.

Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3418. Application to existing institutional funds.

This chapter applies to institutional funds existing on or established after the May 5, 2019. As applied to institutional funds existing on May 5, 2009, this chapter governs only decisions made or actions taken on or after that date.

Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3419. Relation to electronic signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c) , or authorize electronic delivery of any of the notices described in § 103 of that act, 15 U.S.C. § 7003.

Added 2009, No. 9 , § 2, eff. May 5, 2009.

§ 3420. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Added 2009, No. 9 , § 2, eff. May 5, 2009.

CHAPTER 121. DURABLE POWER OF ATTORNEY FOR HEALTH CARE

Sec.

§§ 3451-3467. Recodified. 2003, No. 162 (Adj. Sess.), § 15.

History

Former §§ 3451-3467, relating to durable power of attorney for health care, which were derived from 1987, No. 223 (Adj. Sess.), § 1, were recodified as §§ 5263-5278 of Title 18 pursuant to 2003, No. 162 (Adj. Sess.), § 15.

CHAPTER 123. POWERS OF ATTORNEY

Sec.

§ 3501. Definitions.

As used in this subchapter:

  1. "Accounting" means a written statement itemizing transactions taken by an agent pursuant to authority granted by a principal under a power of attorney.
  2. "Agent" means a person named by a principal in a written power of attorney to act on the principal's behalf, and is synonymous with the term "attorney-in-fact".
  3. "Commercial transaction" means any transaction entered into on behalf of the principal for commercial or business purposes and not primarily for personal, family, or household purposes.
  4. "Compensation" means payment to the agent from assets of the principal for services rendered by the agent.
  5. "Disability or incapacity of the principal" means a physical or mental condition which prevents the principal from directing the actions of the agent and would, under common law principles of agency, cause a power of attorney previously executed by the principal to terminate.
  6. "Durable power of attorney" means a written power of attorney in which the authority of the agent does not terminate in the event of the disability or incapacity of the principal.
  7. "Gift" means any transfer of anything of value for which consideration of less than fair market value is received.
  8. "Power of attorney" means a written document by which a principal designates an agent to act in his or her behalf.
  9. "Principal" means a person who executes a power of attorney designating one or more agents to act on his or her behalf.
  10. "Revocation" means the cancellation by a principal of the authority previously given by the principal to an agent.
  11. "Self-dealing" means any transaction, including transfer of property of a principal to an agent, that directly or indirectly benefits the agent or the immediate family of the agent, regardless of whether the agent has provided consideration for the transaction.
  12. "Termination" means any occurrence or event, including revocation, which, under this subchapter, causes the authority previously given by a principal to an agent to cease.
  13. "Terms of the power of attorney" means the specific language contained in a power of attorney.
  14. "Third party" means any person that acts on a request from, contracts with, or otherwise deals with an agent pursuant to authority granted by a principal in a power of attorney.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3502. Creation of a power of attorney.

  1. Except as provided in subsections (d) and (e) of this section, a power of attorney shall, in order to be valid:
    1. be in writing;
    2. name one or more persons as agent;
    3. give the agent power to act on behalf of the principal; and
    4. be executed as provided in section 3503 of this title.
  2. Except as provided in subsection (c) of this section, a power of attorney shall be effective on the date the power of attorney is executed as provided in section 3503 of this title.
  3. A power of attorney may:
    1. specify the date on which the power of attorney will become effective; or
    2. become effective upon the occurrence of an event, which shall be specified in the power of attorney, as shall the manner in which the event shall be determined to have occurred.
  4. Subsection 3503(e) of this title that requires that an agent accept appointment and subsection 3503(a) of this title that requires the witness and the notary to be different persons shall not be applicable to:
    1. a power of attorney for the sale, transfer, or mortgage of real estate executed in conformance with 27 V.S.A. § 305 , provided the real estate is specifically identified in the power of attorney and the duration of the power of attorney is no more than 90 days; or
    2. a power of attorney for a commercial transaction, provided the transaction is specifically described in the power of attorney and the duration of the power of attorney is no more than 90 days.
  5. Notwithstanding any other provision of law, a military power of attorney containing a provision stating that the power of attorney is prepared pursuant to 10 U.S.C. § 1044b shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this State.
  6. Notwithstanding any other provision of law, a power of attorney appointing a representative to represent a person before the Vermont Department of Taxes that otherwise conforms to the provisions of this section is valid without the signature of a witness or notary.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2005, No. 7 , § 2, eff. April 21, 2005; 2011, No. 143 (Adj. Sess.), § 3; 2013, No. 73 , § 2, eff. June 5, 2013; 2017, No. 24 , § 6, eff. May 4, 2017.

History

Amendments--2017. Subsec. (d): Inserted "that requires that an agent accept appointment" following "title" and deleted "the provision in" preceding "subsection 3503(a)".

Amendments--2013 Subsec. (f): Amended generally.

Amendments--2011 (Adj. Sess.). Subsec. (f): Added.

Amendments--2005. Subsec. (a): Substituted "subsections (d) and (e)" for "subsection (d)" in the introductory paragraph.

Subsec. (e): Added.

§ 3503. Execution.

  1. A power of attorney shall be signed by the principal in the presence of at least one witness and shall be acknowledged before a notary public, who shall be a person other than the witness.
  2. If the principal is physically unable to sign, the power of attorney may be signed in the principal's name written by some other person in the principal's presence and at the principal's express direction, provided the person signing for the principal is not named as agent and the power of attorney states another person has signed for the principal and identifies the name of that person.
  3. A person named as agent under the document may not serve as a witness or notary public with respect to the document.
  4. The witness shall affirm that the principal appeared to be of sound mind and free from duress at the time the power of attorney was signed, and that the principal affirmed that he or she was aware of the nature of the document and signed it freely and voluntarily.
    1. No agent, including alternate or successor agents, may exercise authority granted in a power of attorney unless the agent has signed the power of attorney, attesting that the agent: (e) (1)  No agent, including alternate or successor agents, may exercise authority granted in a power of attorney unless the agent has signed the power of attorney, attesting that the agent:
      1. accepts appointment as agent;
      2. understands the duties under the power of attorney and under the law;
      3. understands that he or she has a duty to act if expressly required to do so in the power of attorney consistent with subsection 3506(c) of this title; and
      4. understands that the agent is expected to use his or her special skills or expertise on behalf of the principal, if the expectation that the agent does so is expressly provided for in the power of attorney consistent with subdivision 3505(a)(6) of this title.
    2. An agent may sign at any time after a power of attorney has been executed and before it has been exercised for the first time.
    1. During the period that the Emergency Administrative Rules for Remote Notarial Acts issued by the Vermont Secretary of State (the Emergency Rules) are in effect, the witness to a power of attorney signed in conformity with the Emergency Rules and pursuant to this section shall be considered to be in the presence of the principal whether or not the witness is physically present with the principal or the notary. A power of attorney executed pursuant to this subsection may be recorded in the land records. (f) (1)  During the period that the Emergency Administrative Rules for Remote Notarial Acts issued by the Vermont Secretary of State (the Emergency Rules) are in effect, the witness to a power of attorney signed in conformity with the Emergency Rules and pursuant to this section shall be considered to be in the presence of the principal whether or not the witness is physically present with the principal or the notary. A power of attorney executed pursuant to this subsection may be recorded in the land records.
    2. A power of attorney executed in compliance with the Emergency Rules shall be presumed to be valid if the notarial certificate attached to the power of attorney contains an affirmative statement of compliance with the Emergency Rules.

      Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2019, No. 95 (Adj. Sess.), § 2, eff. April 28, 2020.

History

Amendments--2019 (Adj. Sess.). Subsec. (f): Added.

§ 3504. Scope of authority.

    1. The agent shall have the authority to act on the principal's behalf as to all lawful subjects and purposes, but only to the extent such authority is given under the terms of the power of attorney, subject to section 3506 of this title and subsections (b) through (g) of this section. (a) (1)  The agent shall have the authority to act on the principal's behalf as to all lawful subjects and purposes, but only to the extent such authority is given under the terms of the power of attorney, subject to section 3506 of this title and subsections (b) through (g) of this section.
    2. A general power of attorney created under this subchapter shall be construed to grant powers that are not expressly delineated in the terms of the power of attorney if it appears from the relevant facts and circumstances that the principal intended the agent to have general authority to act on the principal's behalf with respect to all lawful subjects and purposes. The specific inclusion or exclusion of one or more powers shall not, by itself, prevent a determination that the principal intended to grant general authority to the agent with respect to subjects not specifically included or excluded.
  2. No power of attorney created under this subchapter may give an agent the authority to:
    1. make health care decisions, as that term is defined in chapter 121 of this title;
    2. execute, modify, or revoke a durable power of attorney for health care for the principal;
    3. execute, amend, or revoke a will for the principal;
    4. execute, modify, or revoke a living will for the principal;
    5. require the principal, against his or her will, to take any action or to refrain from taking any action;
    6. exercise, by delegation, the fiduciary responsibility of the principal as executor of a will or administrator of an estate;
    7. exercise, by delegation, the fiduciary responsibility of a trustee, unless the instrument creating or amending the trust specifically authorizes the delegation; or
    8. take any action specifically forbidden by the principal, notwithstanding any provision of the power of attorney giving the agent the authority to take such action.
  3. No agent may convey lands belonging to the principal or an estate or interest therein unless the terms of the power of attorney explicitly provide the agent has such authority and the power of attorney meets the specific execution requirements of section 3503 of this title.
  4. No agent may compensate him or herself for duties performed under a power of attorney with funds or property belonging to the principal unless the terms of the power of attorney explicitly provide for compensation. Reasonable reimbursement for actual out-of-pocket expenditures by the agent for the benefit of the principal shall not be considered compensation.
  5. No agent may make a gift or a loan to a third party unless the terms of the power of attorney explicitly provide for the authority to make gifts or loans.
  6. No agent may make a gift or a loan to him or herself of property belonging to the principal unless the terms of the power of attorney explicitly provide for the authority to make gifts or loans to the agent.
  7. No agent may appoint another person as alternate or successor agent unless the terms of the power of attorney explicitly provide for the authority to appoint an alternate or successor agent.
  8. A power of attorney may specify that accountings shall be made by the agent at specific times or upon the occurrence of specified events or that accountings be made to specified third parties. The authority of the principal to request accountings at any time shall not be limited or waived.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2011, No. 144 (Adj. Sess.), § 3, eff. May 15, 2012.

History

Amendments--2011 (Adj. Sess.). Added the subdiv. (a)(1) designation and added subdiv. (a)(2).

ANNOTATIONS

1. Power to make gifts.

Power of attorney (POA) granting the attorney-in-fact authority to make transfers in his father's stead was created prior to the effective date of the amended POA statute; however, he exercised the term providing him power of transfer after the effective date. The term providing the power to transfer did not give him the explicit power to make gifts, as required by the amended POA statute, and thus an attempt to exercise authority pursuant to that term after the statute's effective date was void and unenforceable. In re Estate of Lovell, 190 Vt. 99, 25 A.3d 560 (2011).

Cited. In re Estate of Kurrelmeyer, 179 Vt. 359, 895 A.2d 207 (March 3, 2006).

§ 3505. Duties of the agent.

  1. The agent shall have a fiduciary duty to the principal. The fiduciary duty of the agent requires that the agent, in the performance of his or her duties, shall:
    1. act in good faith and in the interest of the principal;
    2. refrain from self-dealing except as provided in the power of attorney pursuant to subsection 3504(d) or (f) of this subchapter;
    3. avoid conflicts of interest which would impair the ability of the agent to act in the interest of the principal;
    4. not commingle the funds of the principal with his or her own funds or the funds of third parties, except in an attorney-client trust account in accordance with the rules governing such accounts;
    5. exercise the degree of care that would be observed by a prudent person dealing with the property and affairs of another person;
    6. if selected as agent with the expectation he or she has special skills or expertise, use those skills on behalf of the principal, provided the terms of the power of attorney specify that the agent is expected to use special skills and expertise, and provided, further, the agent acknowledges in signing the power of attorney that he or she has been so selected;
    7. take no action beyond the scope of authority granted by the terms of the power of attorney;
    8. take no action which violates any provision of this subchapter;
    9. keep records of all transactions taken under the power of attorney;
    10. provide accountings upon request of the principal or at such times or in such manner as is specified by the terms of the power of attorney;
    11. follow the directions of the principal specifically forbidding an action, notwithstanding any provision of the power of attorney giving the agent authority to take such action; provided, however, no third party who acts in reliance on the apparent authority of the agent under the power of attorney shall be bound or limited by the directions of the principal to the agent not set forth in the power of attorney unless such third party has actual notice of the instructions;
    12. comply with any lawful termination of the power of attorney as provided in section 3507 of this title.
  2. Nothing in this section shall be construed to limit other duties imposed on the agent by statute or common law.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3506. No duty to exercise authority unless specifically provided.

  1. Except for the duties imposed on agents by this subchapter and except as provided in subsections (b) and (c) of this section, an agent has no duty to exercise any authority granted in a power of attorney, regardless of whether the principal is disabled or incapacitated or otherwise unable to act.
  2. Acting for the principal in one or more transactions does not obligate an agent to act for the principal in a subsequent transaction, but the agent has a duty to the principal to complete any transaction the agent has commenced.
  3. If the power of attorney explicitly provides that the agent has a duty to act for the principal as to specified transactions or types of transactions and the agent has specifically acknowledged and accepted such duty to act in signing the power of attorney, the agreement to act on behalf of the principal is enforceable against the agent regardless of whether there is any consideration to support a contractual obligation.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3507. Termination; revocation.

  1. Subject to the provisions of subsection (c) of this section, a power of attorney shall terminate upon:
    1. the revocation by the principal, as provided in subsection (b) of this section;
    2. the divorce of the principal and spouse, where the spouse is the agent;
    3. the death of the principal;
    4. the disability or incapacity of the principal, except as provided in section 3508 of this title;
    5. the resignation or death of the agent, unless an alternate agent is named in the power of attorney or by the agent;
    6. a termination date specified in the power of attorney, if any;
    7. the occurrence of a termination event explicitly specified in the power of attorney; or
    8. the order of a court of competent jurisdiction.
  2. A principal who is not subject to an involuntary guardianship under subchapter 12 of chapter 111 of this title may revoke a power of attorney, whether durable or not, at any time by notification to the agent orally, or in writing, or by any other act evidencing a specific intent to revoke. An agent must comply with his or her principal's revocation notwithstanding the actual or perceived disability or incapacity of the principal.
  3. The occurrence of a terminating circumstance listed in subsection (a) of this section does not terminate a power of attorney, whether durable or not, as to the agent or other person, who, without actual knowledge of the terminating circumstance, acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her heirs, devisees, and personal representatives.
  4. When an agent has acted in good faith under a power of attorney without actual knowledge of the occurrence of a terminating circumstance, an affidavit may be executed by the agent at any time, stating at the time of doing an act pursuant to the power of attorney, he or she did not have actual knowledge of the occurrence of the terminating circumstance. The affidavit shall constitute conclusive proof of the nontermination of the power of attorney at that time, in the absence of fraud. If the exercise of the power requires execution and delivery of any instrument that is recordable, the affidavit may also be recorded and shall be cross-referenced to the other instrument.
  5. A power of attorney coupled with an interest in a commercial transaction shall not be subject to revocation if the power of attorney states that it is irrevocable.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3508. Durable powers of attorney; when power of attorney not affected by disability.

  1. A durable power of attorney is created by an explicit term in the power of attorney that "This power of attorney shall not be affected by the subsequent disability or incapacity of the principal," or similar words showing the intent of the principal that the authority given the agent is intended to be exercisable notwithstanding the principal's subsequent disability or incapacity.
  2. If the principal intends that the power of attorney become effective upon the principal's subsequent disability or incapacity, the power of attorney shall state that fact, and specify the manner in which the disability or incapacity is to be determined.
  3. All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal shall have the same effect as if the principal were not disabled or incapacitated.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3509. Effect of subsequent involuntary guardianship on power of attorney.

  1. On motion filed in connection with a petition for appointment of an involuntary guardian or on petition of a guardian if one has been appointed, the Probate Division of the Superior Court shall consider whether the authority of an agent designated pursuant to a previously executed power of attorney should continue undisturbed or be limited, suspended or terminated. The court may issue an order limiting, suspending or terminating the power of attorney only upon determining that to do so would be in the best interests of the ward.
  2. Upon a finding by a Probate Division of the Superior Court that appointment of a guardian is warranted, pursuant to a petition for involuntary guardianship under subchapter 12 of chapter 111 of this title, if the principal has nominated a guardian in a previously executed power of attorney or other document, the Probate Division of the Superior Court shall appoint as guardian the person so nominated unless the court determines that to do so would not be in the best interests of the ward.
  3. In determining the best interests of the ward, the court shall consider, at a minimum, the following factors:
    1. the preferences of the ward, including the identity of the agent and the scope of the agent's authority, as expressed in the power of attorney;
    2. whether the agent was appointed because he or she has special skills or expertise;
    3. whether a guardian is needed to perform duties for which authority was not given under the power of attorney;
    4. whether the exercise of concurrent powers is advisable when the scope of the agent's authority overlaps with the authority of the guardian;
    5. whether the agent and the guardian are able to perform their respective duties in a collaborative manner that does not compromise the best interests of the ward;
    6. whether the agent has violated the provisions of this subchapter or the terms of the power of attorney, breached his or her fiduciary duty, failed to perform duties under the power, or is unable or unwilling to perform duties under the power of attorney;
    7. whether the power of attorney was improperly executed;
    8. whether the principal executed the power of attorney as the result of duress, coercion, fraud, or undue influence; or
    9. whether the principal lacked the capacity to create the power of attorney at the time of execution.
  4. If a guardian is appointed for the principal and the court determines that the previously executed power of attorney should remain in effect, the agent shall account to the guardian rather than the principal.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

2001 (Adj. Sess.) Substituted "chapter 111 of this title" for "this chapter" to correct an inaccurate cross reference.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsec. (a) and in two places in subsec. (b).

§ 3510. Action for accounting; declaratory relief; termination of power of attorney.

  1. A principal may file a petition in Superior Court to compel the agent to submit an accounting or report his or her acts as agent to the principal or for the purposes listed in subdivisions (c)(1)-(3) of this section.
  2. The Commissioner of Disabilities, Aging and Independent Living, or designee, acting pursuant to 33 V.S.A. chapter 69, may also file a petition in Superior Court for the purposes listed in subsection (c) of this section. If, upon motion of the principal, the court determines that the principal is capable of expressing his or her opinion and does not wish the Commissioner, or designee, to pursue the petition, the court shall dismiss the petition unless the court finds the opinion is the product of duress or undue influence.
  3. A petition may be filed for the following purposes:
    1. To determine whether a power of attorney is in effect or has been terminated or revoked.
    2. To determine the legality of acts, proposed acts, or omissions of an agent.
    3. To enjoin the agent from taking unauthorized or illegal acts or to compel the agent to act, if the terms of the power of attorney provide that the agent has a duty to act, pursuant to section 3506 of this title.
    4. To compel the agent to submit an accounting or to report his or her acts as agent to the Commissioner of Disabilities, Aging and Independent Living, acting pursuant to subsection (b) of this section, upon a showing that there is good cause to believe:
      1. the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney; and
      2. that, at the time of the petition, the principal lacked the capacity to request an accounting.
    5. To declare that the power of attorney shall be terminated upon determination by the court that the power of attorney was improperly executed, the principal executed the power of attorney as the result of duress, fraud or undue influence, the principal lacked the capacity to create the power of attorney at the time of execution, the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney.
    1. In a proceeding under this section, commenced by the filing of a petition by a principal or the principal's legal representative, the court may order an agent to pay reasonable attorney's fees to the principal if the court determines that the agent has clearly violated the provisions of this chapter or the terms of the power of attorney, his or her fiduciary duties under the power of attorney, or has failed without any reasonable cause or justification to submit accountings or reports after written request. (d) (1)  In a proceeding under this section, commenced by the filing of a petition by a principal or the principal's legal representative, the court may order an agent to pay reasonable attorney's fees to the principal if the court determines that the agent has clearly violated the provisions of this chapter or the terms of the power of attorney, his or her fiduciary duties under the power of attorney, or has failed without any reasonable cause or justification to submit accountings or reports after written request.
    2. In a proceeding under this section, commenced by the filing of a petition by the Commissioner of Disabilities, Aging and Independent Living, or designee, the court may order the Commissioner to pay reasonable attorney's fees to the agent if the court finds that the petition was filed without a substantial basis in law or fact.
  5. The principal and the agent shall be parties to any petition brought under this section.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2005, No. 174 (Adj. Sess.), § 26.

History

Amendments--2005 (Adj. Sess.). Substituted "commissioner of disabilities, aging, and independent living" for "commissioner of aging and disabilities" in subsection (b) and in subdivs. (c)(4), and (d)(2).

§ 3511. Remedies for violation by agent.

Any principal who sustains damages or injury as a result of an agent's action or inaction in violation of this chapter, the terms of a power of attorney, or the agent's fiduciary duties under a power of attorney may sue for appropriate equitable relief, and may sue and recover from the agent the amount of his or her damages, costs, and reasonable attorney's fees.

Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

History

2001 (Adj. Sess.) Substituted "chapter" for "subchapter" to correct an inaccurate reference.

§ 3512. Other common law and statutory remedies still available.

Nothing in this subchapter shall be construed to abrogate any other causes of action or relief at law or equity to which a principal is entitled under other statutes or at common law.

Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3513. Presumption of validity.

Any power of attorney executed as provided in this subchapter shall be presumed valid. No third party with whom an agent seeks to act shall require an additional or different form of power of attorney. A photocopy or electronically transmitted facsimile of a duly executed original power of attorney may be relied upon to the same extent as the original.

Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3514. Reciprocity.

Nothing in this subchapter limits the enforceability of a power of attorney or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction.

Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

§ 3515. Provisions of statute implied; may not be waived; severable.

  1. The duties and obligations of agents under this subchapter shall be deemed incorporated into all powers of attorney.
  2. Any term of a power of attorney, executed after June 13, 2002, which purports to waive, or which is otherwise inconsistent with, the provisions of this subchapter, shall be void and unenforceable.
  3. If any term of a power of attorney is held to be invalid, the invalidity does not affect other terms of the power of attorney that can be given effect without the invalid term.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002.

ANNOTATIONS

Analysis

1. Construction.

Reading in their entirety the first two subsections of the statute entitled "Provisions of statute implied," it appears that even for a power of attorney (POA) created prior to the effective date of the statute, any exercise of authority under that POA which occurs after the statute's effective date must conform with the entire statute or the execution is invalid. In re Estate of Lovell, 190 Vt. 99, 25 A.3d 560 (2011).

2. Particular cases.

Power of attorney (POA) granting the attorney-in-fact authority to make transfers in his father's stead was created prior to the effective date of the amended POA statute; however, he exercised the term providing him power of transfer after the effective date. The term providing the power to transfer did not give him the explicit power to make gifts, as required by the amended POA statute, and thus an attempt to exercise authority pursuant to that term after the statute's effective date was void and unenforceable. In re Estate of Lovell, 190 Vt. 99, 25 A.3d 560 (2011).

§ 3516. Effective date; effect on existing powers of attorney.

  1. A power of attorney shall be valid if it:
    1. complies with the terms of this subchapter; or
    2. is executed before July 1, 2002 and valid under common law or statute existing at the time of execution.
  2. If a power of attorney executed before July 1, 2002 was valid under common law or statute existing at the time of execution, any exercise of authority under the power of attorney, whether before or after July 1, 2002, shall be deemed valid if the exercise complies with common law or statute existing at the time of execution.

    Added 2001, No. 135 (Adj. Sess.), § 2, eff. June 13, 2002; amended 2011, No. 144 (Adj. Sess.), § 4, eff. May 15, 2012.

History

Amendments--2011 (Adj. Sess.). Added the subsec. (a) designation and added subsec. (b).

CHAPTER 125. VERMONT REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT

Sec.

§ 3551. Short title.

This chapter may be cited as the Vermont Revised Uniform Fiduciary Access to Digital Assets Act.

Added 2017, No. 13 , § 1.

§ 3552. Definitions.

As used in this chapter:

  1. "Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.
  2. "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney.
  3. "Carries" means engages in the transmission of an electronic communication.
  4. "Catalogue of electronic communications" means information that identifies each person with whom a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
  5. "Content of an electronic communication" means information concerning the substance or meaning of a communication that:
    1. has been sent or received by a user;
    2. is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and
    3. is not readily accessible to the public.
  6. "Court" means the Probate Division of the Superior Court of Vermont.
  7. "Custodian" means a person who carries, maintains, processes, receives, or stores a digital asset of a user.
  8. "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.
  9. "Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
  10. "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  11. "Electronic communication" has the same meaning as in 18 U.S.C. § 2510(12).
  12. "Electronic-communication service" means a custodian who provides to a user the ability to send or receive an electronic communication.
  13. "Fiduciary" means an original, additional, or successor personal representative, guardian, agent, or trustee.
  14. "Guardian" means a person appointed by a court to manage the estate of a living individual. The term includes a limited guardian.
  15. "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.
  16. "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
  17. "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
  18. "Person under guardianship" means an individual for whom a guardian has been appointed. The term includes an individual for whom an application for the appointment of a guardian is pending.
  19. "Personal representative" means an executor, administrator, or special administrator, or a person who performs substantially the same function as an executor, administrator, or special administrator under law of this State other than this chapter.
  20. "Power of attorney" means a record that grants an agent authority to act in the place of a principal.
  21. "Principal" means an individual who grants authority to an agent in a power of attorney.
  22. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  23. "Remote-computing service" means a custodian who provides a user with computer-processing services or the storage of digital assets by means of an electronic communications system as defined in 18 U.S.C. § 2510(14).
  24. "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.
  25. "Trustee" means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee.
  26. "User" means a person who has an account with a custodian.
  27. "Will" includes a codicil, testamentary instrument that only appoints an executor, and an instrument that revokes or revises a testamentary instrument.

    Added 2017, No. 13 , § 1.

§ 3553. Applicability.

  1. This chapter applies to:
    1. a fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;
    2. a personal representative acting for a decedent who died before, on, or after July 1, 2017;
    3. a guardianship proceeding commenced before, on, or after July 1, 2017; and
    4. a trustee acting under a trust created before, on, or after July 1, 2017.
  2. This chapter applies to a custodian if the user resides in this State or resided in this State at the time of the user's death.
  3. This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.

    Added 2017, No. 13 , § 1.

§ 3554. User direction for disclosure of digital assets.

  1. A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
  2. If a user has not used an online tool to give direction under subsection (a) of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
  3. A user's direction under subsection (a) or (b) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

    Added 2017, No. 13 , § 1.

§ 3555. Terms-of-service agreement.

  1. This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
  2. This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
  3. A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under section 3554 of this title.

    Added 2017, No. 13 , § 1.

§ 3556. Procedure for disclosing digital assets.

  1. When disclosing digital assets of a user under this chapter, the custodian may in its sole discretion:
    1. grant a fiduciary or designated recipient full access to the user's account;
    2. grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
    3. provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
  2. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
  3. A custodian need not disclose under this chapter a digital asset deleted by a user.
  4. If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
    1. a subset limited by date of the user's digital assets;
    2. all of the user's digital assets to the fiduciary or designated recipient;
    3. none of the user's digital assets; or
    4. all of the user's digital assets to the court for review in camera.

      Added 2017, No. 13 , § 1.

§ 3557. Disclosures of content of electronic communications of deceased user.

If a deceased user consented, or if a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. a certified copy of the death certificate of the user;
  3. a certified copy of the certificate of appointment of a fiduciary;
  4. unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
  5. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
    2. evidence linking the account to the user; or
    3. a finding by the court that:
      1. the user had a specific account with the custodian, identifiable by the information specified in subdivision (A) of this subdivision (5);
      2. disclosure of the content of electronic communications of the user would not violate 18 U.S.C. § 2701 et seq., 47 U.S.C. § 222, or other applicable law;
      3. unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
      4. disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

        Added 2017, No. 13 , § 1.

§ 3558. Disclosure of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user, and digital assets of the user other than the content of electronic communications, if the representative gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. a certified copy of the death certificate of the user;
  3. a certified copy of the certificate of appointment of fiduciary; and
  4. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
    2. evidence linking the account to the user;
    3. an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
    4. a finding by the court that:
      1. the user had a specific account with the custodian, identifiable by the information specified in subdivision (A) of this subdivision (4); or
      2. disclosure of the user's digital assets is reasonably necessary for administration of the estate.

        Added 2017, No. 13 , § 1.

§ 3559. Disclosure of content of electronic communications of principal.

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal, and unless directed otherwise by the principal or the court, a custodian shall disclose the content of the electronic communication to the agent if the agent gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. an original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
  3. a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
  4. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
    2. evidence linking the account to the principal.

      Added 2017, No. 13 , § 1.

§ 3560. Disclosure of other digital assets of principal.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal, and digital assets of the principal other than the content of electronic communications, if the agent gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
  3. a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
  4. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
    2. evidence linking the account to the principal.

      Added 2017, No. 13 , § 1.

§ 3561. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

Added 2017, No. 13 , § 1.

§ 3562. Disclosure of contents of electronic communications held in trust when trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust, if the trustee gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. a certified copy of the trust instrument or a certification of the trust under 14A V.S.A. § 1013 that includes consent to disclosure of the content of electronic communications to the trustee;
  3. a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
    2. evidence linking the account to the trust.

      Added 2017, No. 13 , § 1.

§ 3563. Disclosure of other digital assets held in trust when trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust, and any digital assets other than the content of electronic communications in which the trust has a right or interest, if the trustee gives the custodian:

  1. a written request for disclosure in physical or electronic form;
  2. a certified copy of the trust instrument or a certification of the trust under 14A V.S.A. § 1013;
  3. a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
  4. if requested by the custodian:
    1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
    2. evidence linking the account to the trust.

      Added 2017, No. 13 , § 1.

§ 3564. Disclosure of digital assets to guardian of person under guardianship.

  1. After an opportunity for a hearing under 14 V.S.A. § 3068 , the court may grant a guardian access to the digital assets of a person under guardianship.
  2. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian the catalogue of electronic communications sent or received by a person under guardianship, and any digital assets other than the content of electronic communications in which the person under guardianship has a right or interest, if the guardian gives the custodian:
    1. a written request for disclosure in physical or electronic form;
    2. a certified copy of the court order that gives the guardian authority over the digital assets of the person under guardianship; and
    3. if requested by the custodian:
      1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the person under guardianship; or
      2. evidence linking the account to the person under guardianship.
  3. A guardian with general authority to manage the assets of a person under guardianship may request a custodian of the digital assets of the person under guardianship to suspend or terminate an account of the person under guardianship for good cause. A request made under this section shall be accompanied by a certified copy of the court order giving the guardian authority over the protected person's property.

    Added 2017, No. 13 , § 1.

§ 3565. Fiduciary duty and authority.

  1. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
    1. the duty of care;
    2. the duty of loyalty; and
    3. the duty of confidentiality.
  2. A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
    1. is subject to the applicable terms of service, except as otherwise provided in section 3554 of this title;
    2. is subject to other applicable law, including copyright law;
    3. in the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
    4. shall not be used to impersonate the user.
  3. A fiduciary with authority over the property of a decedent, person under guardianship, principal, or settlor has the right to access any digital asset in which the decedent, person under guardianship, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
  4. A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, person under guardianship, principal, or settlor for the purpose of applicable computer-fraud and unauthorized-computer-access laws, including 13 V.S.A. § 4102 .
  5. A fiduciary with authority over the tangible, personal property of a decedent, person under guardianship, principal, or settlor:
    1. has the right to access the property and any digital asset stored in it; and
    2. is an authorized user for the purpose of computer-fraud and unauthorized-computer-access laws, including 13 V.S.A. § 4102 .
  6. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
  7. A fiduciary of a user may request a custodian to terminate the user's account. A request for termination shall be in writing, in either physical or electronic form, and accompanied by:
    1. if the user is deceased, a certified copy of the death certificate of the user;
    2. a certified copy of the certificate of appointment of fiduciary, court order, power of attorney, or trust giving the fiduciary authority over the account; and
    3. if requested by the custodian:
      1. a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
      2. evidence linking the account to the user; or
      3. a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subdivision (A) of this subdivision (3).

        Added 2017, No. 13 , § 1.

§ 3566. Custodian compliance and immunity.

  1. Not later than 60 days after receipt of the information required by sections 3557-3565 of this title, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply with the request, the fiduciary or designated recipient may apply to the court for an order directing compliance.
  2. An order under subsection (a) of this section directing compliance shall contain a finding that compliance is not in violation of 18 U.S.C. § 2702.
  3. A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
  4. A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
  5. This chapter shall not limit a custodian's ability to obtain, or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain, a court order that:
    1. specifies that an account belongs to the person under guardianship or the principal;
    2. specifies that there is sufficient consent from the person under guardianship or the principal to support the requested disclosure; and
    3. contains a finding required by law other than this chapter.
  6. A custodian and its officers, employees, and agents shall be immune from liability for any act or omission done in good faith compliance with this chapter.

    Added 2017, No. 13 , § 1.

§ 3567. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Added 2017, No. 13 , § 1.

§ 3568. Relation to electronic signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that Act, 15 U.S.C. § 7001(c) , or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. § 7003(b) .

Added 2017, No. 13 , § 1.