What Is Probate and How Does It Work in Vermont?

What Is Probate and How Does It Work in Vermont?

Probate is the court-supervised legal process that takes place after someone dies. It serves three essential functions: authenticating the deceased person's will if one exists, ensuring all valid debts, taxes, and expenses are paid from the estate, and formally transferring ownership of remaining assets to the rightful heirs or beneficiaries.

In Vermont, probate is administered exclusively by the Probate Division of the Superior Court, one of which sits in each of Vermont's 14 counties. All Vermont estate matters are governed by Title 14 of the Vermont Statutes Annotated (14 V.S.A.), Decedents' Estates and Fiduciary Relations. The Vermont Probate Judge examines the legality of a will, oversees the personal representative's administration, ensures compliance with state law, and issues the final Decree of Distribution that authorizes the transfer of assets to beneficiaries.

Vermont recognizes four types of probate estates.

•      Testate estate: The decedent left a valid will. Governed by 14 V.S.A. Chapter 3.

•      Intestate estate: The decedent died without a valid will. Governed by 14 V.S.A. §§ 301 et seq.

•      Small estate: Personal property only with a value of $45,000 or less. Governed by 14 V.S.A. § 1901.

•      Ancillary estate: The decedent lived out of state but owned Vermont property. Governed by 14 V.S.A. § 114.

Vermont probate is not optional for assets solely titled in the decedent's name at death. However, many common assets, including jointly owned property, accounts with beneficiary designations, and assets held in trust, pass entirely outside of probate without court involvement.

No. Vermont law recognizes a broad category of non-probate transfers, assets that pass directly to a surviving owner or named beneficiary without any court process. Understanding which assets are and are not subject to probate is the foundation of every sound Vermont estate plan.

•      Real estate titled solely in the decedent's name.

•      Bank or investment accounts with no joint owner or payable-on-death designation and not held in trust.

•      Personal property such as vehicles, household contents, and jewelry in the decedent's name alone.

•      Business interests held in the decedent's name without a buy-sell agreement, survivorship arrangement, or trust.

•      Property held in joint tenancy with right of survivorship, which passes to the surviving owner automatically by operation of law.

•      Life insurance with a named beneficiary other than the estate.

•      IRAs, 401(k)s, and retirement accounts with beneficiary designations other than the estate.

•      Accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation.

•      Property held in a funded living trust.

•      Certain survivor benefits and annuities with beneficiary designations.

Vermont has clear, non-negotiable statutory requirements for a valid will. Failure to meet even one of these requirements can render an entire will void, regardless of the testator's intent.

Under 14 V.S.A. § 5, a valid Vermont will must be: in writing; signed by the testator or in the testator's name by another person in the testator's presence and at the testator's express direction; and attested and subscribed by two or more credible witnesses in the presence of the testator and of each other. Under 14 V.S.A. § 1, the testator must be at least 18 years old or emancipated and of sound mind.

•      The will must be in writing. Audio recordings, video files, and digital documents are not valid wills in Vermont.

•      Two witnesses must sign in the presence of both the testator and each other.

•      If a witness is also a beneficiary under the will, that bequest to the witness is void unless two additional disinterested witnesses also signed.

Vermont does not recognize holographic wills, handwritten unwitnessed wills, unless the will was executed in another jurisdiction that recognizes them and was valid under that state's law. No matter how clearly a handwritten note expresses a person's wishes, it is not a valid Vermont will without two witnesses.

Any person who has custody of a will must deliver it to the Probate Division of the Superior Court within 30 days of learning of the testator's death. The named executor must then file a death certificate and petition to open the estate with reasonable promptness.

14 V.S.A. §§ 1, 5, 103, 104, 112

A person who dies without a valid will is said to have died intestate. Vermont's intestate succession statutes then control exactly who inherits, and in what proportions, regardless of what the decedent may have wished.

Vermont's intestate succession rules under 14 V.S.A. §§ 311–314 work as follows.

•      Survived by spouse only, no descendants: spouse inherits the entire estate.

•      Survived by spouse and children all from that marriage: spouse inherits the entire estate.

•      Survived by spouse and children from another relationship: spouse inherits one-half, children from the other relationship inherit one-half.

•      Children but no spouse: children inherit everything equally.

•      No spouse or children: parents inherit everything.

•      No spouse, children, or parents: siblings inherit everything; if siblings have predeceased, their children inherit by right of representation.

Several important special rules apply.

•      A person must survive the decedent by at least 120 hours to inherit. (14 V.S.A. § 337)

•      Adopted children have the same inheritance rights as biological children.

•      Half-blood relatives inherit equally with whole-blood relatives of the same degree. (14 V.S.A. § 331)

•      A person criminally responsible for the decedent's death cannot inherit. (14 V.S.A. § 322)

Intestate succession does not account for actual relationships, only legal ones. A lifelong domestic partner who was never married to the decedent, a stepchild who was never formally adopted, or a close friend receives absolutely nothing under Vermont intestacy law, no matter how close the relationship. Only a valid will or trust can protect these individuals.

14 V.S.A. §§ 301–338

The person who manages a Vermont estate is called the executor when named in a will, or administrator when appointed by the court because there is no will or the named executor cannot serve. Vermont statutes also use the term personal representative to encompass both roles. Both are fiduciaries with a legal duty to act in the best interests of the estate and its beneficiaries.

When there is no will, 14 V.S.A. § 903 establishes the priority order for court appointment of an administrator: first, the surviving spouse; second, next of kin; third, creditors; and fourth, any other person the court appoints in its discretion.

•      Minors under the age of 18.

•      Persons adjudged incapacitated by a court.

•      Persons with felony convictions may face scrutiny from the Probate Division.

•      Non-resident executors may be required to appoint a Vermont resident agent for service of process.

Under 14 V.S.A. § 906, the court may require a personal representative to post a bond to protect the estate against mismanagement. The will can waive this requirement, and the necessity and amount of any bond are at the court's discretion.

No one can be forced to serve as executor. If you are named in a will, you have the right to decline the appointment. Before accepting the role, carefully consider whether you have the time, organizational capacity, and willingness to manage what can be a multi-year process for complex estates.

14 V.S.A. §§ 903, 906

Serving as a Vermont executor is a significant legal responsibility. The executor is a fiduciary, legally obligated to put the estate's interests first and to carry out the decedent's wishes as expressed in the will. Failure to comply with statutory deadlines or to properly manage estate assets can result in personal liability.

The core executor duties under 14 V.S.A. §§ 901–1070 include the following.

•      Petition to open the estate in the Probate Division of the Superior Court in the county where the decedent lived at death.

•      File an inventory of all estate assets within 30 days of appointment, listing each asset at fair market value as of the date of death.

•      Publish notice to creditors and individually notify known creditors.

•      Collect and protect all estate assets.

•      Respond to creditor claims by allowing or disallowing them within 60 days of receipt.

•      Pay valid debts and expenses in the priority order established by 14 V.S.A. § 1205.

•      File required federal and Vermont tax returns if applicable.

•      File annual accounting reports with the court until the estate closes.

•      Distribute remaining assets to beneficiaries only after court approval.

•      File a Summary of Account and Petition to Close with the court.

•      Will delivery: Within 30 days of learning of the testator's death. (14 V.S.A. § 103)

•      Estate inventory: Within 30 days of appointment. (14 V.S.A. § 1051)

•      Notice to creditors: Published as soon as practicable after appointment. (14 V.S.A. § 1201)

•      Creditor claim deadline: Four months from first publication of notice. (14 V.S.A. § 1203)

•      Allow or disallow a claim: Within 60 days of receipt. (14 V.S.A. § 1206)

•      Annual accounting: Required annually until the estate is closed. (14 V.S.A. § 1055)

Under 14 V.S.A. § 1065, a personal representative is entitled to reasonable compensation for services rendered to the estate. If the will specifies a fee, that controls subject to court review. If the will is silent, the executor may claim a reasonable fee based on the size and complexity of the estate. Executor compensation is taxable income.

If you pay a creditor claim that was not properly filed, or pay debts in the wrong priority order, you as executor may be personally liable to reimburse the estate. Consult an attorney before making distributions or paying any significant creditor claims.

14 V.S.A. §§ 901–1070 (including §§ 1051, 1055, 1065)

Vermont law balances the rights of creditors against the need to close estates in a timely manner. Under 14 V.S.A. § 1203, all claims against a decedent's estate that arose before death are barred unless presented within four months after the date of the first publication of notice to creditors, or within one year after the decedent's death if notice to creditors was never published or otherwise given.

The process works as follows. The creditor delivers a written statement of the claim to the executor, specifying the basis, amount, and the claimant's name and address. The creditor files a copy with the Probate Division. The executor then has 60 days to either allow or disallow the claim. If disallowed, the creditor must file a petition with the court or commence a proceeding within 60 days of receiving the notice of disallowance.

The four-month creditor claim period is a hard deadline. Once it passes, claims that were not timely filed are permanently barred, even if the creditor later discovers the estate. Publishing notice promptly and documenting the date of publication is essential executor practice.

14 V.S.A. §§ 1201, 1203, 1206

Vermont law establishes a strict statutory priority order for paying estate obligations under 14 V.S.A. § 1205. If there are insufficient assets to pay all claims in full, the executor must follow this order exactly. Paying a lower-priority obligation before a higher-priority one can expose the executor to personal liability.

•      First: Expenses of administration, including court costs, attorney fees, and executor compensation.

•      Second: Funeral, burial, and headstone expenses up to $3,800.

•      Third: Past due wages owed by the decedent, up to $300 per claimant.

•      Fourth: All other claims against the estate.

If the estate is insolvent and cannot pay all claims in full, the executor should file a Motion for Order of Dividend and ask the Probate Division to direct the payment priority.

14 V.S.A. § 1205

Yes. Vermont law protects a surviving spouse from being entirely disinherited. Even if a will leaves a spouse nothing, or far less than they would receive under intestacy, the spouse has a statutory right to elect against the will and claim a guaranteed minimum share of the estate.

Under 14 V.S.A. § 319, a surviving spouse may elect to waive the provisions of the decedent's will and instead take one-half of the balance of the probate estate, after the payment of allowances, claims, and expenses. The court must provide the surviving spouse with written notice of these rights within 30 days of the filing of the initial estate inventory. The spouse then has four months from service of that notice to decide whether to elect against the will.

Vermont law provides additional protections for the surviving spouse beyond the elective share.

•      The surviving spouse may petition for ownership of household goods and furnishings from the estate.

•      The surviving spouse and minor children are entitled to a reasonable allowance for support during the period of estate administration.

•      Vermont homestead rights under 27 V.S.A. § 141 provide further protections for the family home.

A surviving spouse who signed a valid prenuptial or postnuptial agreement waiving the elective share under 14 V.S.A. § 323 may be bound by that agreement. If you believe a waiver may exist, consult an estate planning attorney before assuming the elective share right is available.

14 V.S.A. §§ 319, 323; 27 V.S.A. § 141

Vermont has a simplified probate process for small estates that significantly reduces the time, cost, and complexity of estate administration. Under 14 V.S.A. § 1901, when a decedent's estate has a fair market value of not more than $45,000 and consists entirely of personal property, meaning no Vermont real estate other than a time-share as defined by 32 V.S.A. § 3619(a), the estate may be commenced by a simplified filing procedure.

To qualify for the small estate procedure:

•      The estate's fair market value must not exceed $45,000.

•      The estate must consist entirely of personal property with no Vermont real estate.

•      The petitioner must file a petition, death certificate, will if any exists, list of heirs, affidavit of funeral expenses and known debts, and a bond without surety.

•      Any interested party who has not consented in writing must receive notice and has 14 days to file objections.

The primary benefits of the small estate procedure: there is no requirement to publish a formal notice to creditors, the process is significantly faster and less expensive than full probate, and once debts are paid the assets may be distributed and the estate closed with a Report of Fiduciary for Small Estate.

14 V.S.A. § 1901; 32 V.S.A. § 3619(a)

There is no fixed timeline for Vermont probate. The duration depends heavily on the size of the estate, the number and complexity of creditor claims, whether the will is contested, applicable tax obligations, and how efficiently the executor manages the process.

The minimum realistic timeline for an uncomplicated Vermont probate estate is approximately six to eighteen months. This floor is driven primarily by the four-month creditor claim window that begins after publication of notice. No estate can be fully closed until that period expires and all timely claims have been addressed.

Estates involving real estate, multiple beneficiaries, business interests, out-of-state assets, required estate tax returns, or family disputes routinely take one to three years or longer. When attorney fees, court costs, and executor compensation are factored in, costs for a complex Vermont estate can reach $20,000 or more. Proactive estate planning, particularly the use of funded living trusts and updated beneficiary designations, can substantially reduce or eliminate these costs.

Many Vermonters structure their estates specifically to minimize or eliminate probate entirely. Because the probate process can be time-consuming, expensive, and public, the most effective estate planning tools ensure assets pass directly at death without court involvement.

The most comprehensive probate avoidance tool available in Vermont. Assets transferred into a properly funded living trust during the settlor's lifetime pass directly to beneficiaries at death according to the trust's terms, without any court process. Vermont trusts are governed by the Vermont Trust Code, 14A V.S.A. §§ 101–1204. The critical requirement is funding the trust, actually transferring ownership of assets into the trust's name before death. An unfunded trust provides no probate avoidance benefit.

Allows a surviving joint owner to inherit automatically by operation of law, without probate. Commonly used by spouses who jointly own real estate and want it to pass seamlessly at the first death.

IRAs, 401(k)s, life insurance policies, and accounts with payable-on-death (POD) or transfer-on-death (TOD) designations pass directly to named beneficiaries without probate. These designations should be reviewed and updated regularly, particularly after major life events. Naming a minor child as a direct beneficiary can create complications; a trust is often the more appropriate vehicle.

A powerful Vermont-specific tool that allows a property owner to transfer real estate to named beneficiaries at death, automatically and without probate, while retaining full control of the property during their lifetime, including the right to sell, mortgage, or change beneficiaries at any time.

One important rule applies even when probate is avoided entirely: Vermont still requires the custodian of a will to file it with the Probate Division within 30 days of learning of the testator's death, even if no assets will pass through probate. This requirement preserves the will as a permanent public record and protects the estate against future claims.

14 V.S.A. § 103; 14A V.S.A. §§ 101–1204

Navigating Vermont probate, or planning to avoid it, requires an understanding of Vermont-specific statutes, court procedures, and deadlines that vary from the rules of other states. Whether you are serving as an executor, settling a loved one's estate, or planning proactively to spare your own family the burden of probate, we are ready to help.

Attorney Nicole McPhee has been helping Vermont families navigate probate and plan to avoid it for more than 30 years. At Will and Trust Planning, we provide experienced, personalized legal guidance with statewide Vermont service, in-person meetings in Rutland, and virtual meetings available throughout the state.

Contact Will and Trust Planning Today

For personalized advice on estate planning, including strategies to minimize or avoid probate, contact Will and Trust Planning today. Our experienced estate planning attorneys can help you understand your options, draft essential documents, and create a plan that protects your assets and achieves your goals.