title-14•Title 14 — Decedents Estates and Fiduciary Relations
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Chapter 1 Wills
§ 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.)
§ 2 Deposit of will for safekeeping; delivery; final disposition
(a) 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)(18). 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.
(b) 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.
(c) 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.
(d) [Repealed.]
(e) 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; 2025, No. 64, § 12, eff. June 12, 2025.)
§ 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.)
§ 4 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 1.
§ 5 Execution of will; requisites
(a) 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.)
§ 6 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 1.
§ 7 How made by soldier or sailor; military will
(a) 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.
(b) 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.)
§ 8 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 1.
§ 9 Repealed
[Repealed]
1967, No. 329 (Adj. Sess.), § 1, eff. March 23, 1968.
§ 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.)
§ 11 How revoked
(a)(1) A will is revoked:
(A) by executing a subsequent will that revokes the previous will expressly or by inconsistency; or
(B) 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.
(b) 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.
(c) 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.)
Chapter 3 Probate and Procedure for Construction of Wills
§ 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.)
§ 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.)
§ 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.)
§ 104 Executor to present will and accept or refuse trust
(a) 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.
(b) 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.)
§ 105 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 2.
§ 106 Duty of custodian of will; liability
(a) 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.
(b) 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.)
§ 107 Allowance of will; custody of property
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 109 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 2.
§ 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.)
§ 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.)
§ 112 Wills made out of state
(a) 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.
(b) 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.)
§ 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.)
§ 114 Petition and hearing on
(a) 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.
(b) 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.)
§ 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.)
§§ 116, 117 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 2.
§ 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
§ 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
(a) 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.
(b) The invalidity of a will as an international will shall not affect its formal validity as a will of another kind.
(c) 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
(a) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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
(a) 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.
(b) The certificate required by this section shall be in substantially the following form:
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)
(Added 2019, No. 11, § 1.)
§ 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
§ 201 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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:
(A) 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.
(B) 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.
(C) 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.)
§ 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.)
§ 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.)
Chapter 41 Survivors' Rights and Allowances
§§ 401-408 Repealed
[Repealed]
2009, No. 55, § 4, eff. June 1, 2009.
§ 409 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
Chapter 42 Descent and Survivors' Rights
Subchapter 1 General Provisions
§ 301 Intestate estate
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 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.)
§ 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
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) The parent and child relationship may be established in parentage proceedings under Title 15C.
(c) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 319 Elective share of surviving spouse; notice of rights
(a) 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.
(b) 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
(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
(B) does not expressly exclude the authority to make the election.
(c) 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.
(d) 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.
(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:
(A) the date of service of the notice of rights of surviving spouse; or
(B) the date of service of the inventory.
(f) 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.)
§ 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.)
§ 321 Conveyance to defeat spouse’s interest
(a) 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.
(b) 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.)
§ 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.)
§ 323 Written waiver of spousal rights
(a) 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.
(b) 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.
(c) 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
(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
(B) does not expressly exclude the authority to make the election.
(d) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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
(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:
(A) property not disposed of by the will;
(B) residuary devises and bequests;
(C) general devises and bequests;
(D) 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.
(b) 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.
(c) 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
§§ 461-475 Repealed
[Repealed]
2009, No. 55, § 4, eff. June 1, 2009.
Chapter 45 Descent, Omitted Issue and Lapsed Legacies
§§ 551-559 Repealed
[Repealed]
2009, No. 55, § 4, eff. June 1, 2009.
Chapter 47 Uniform Simultaneous Death Act
§ 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.
§ 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.
§ 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.
§ 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.
§ 625 Construction
This chapter shall not apply to the distribution of the property of a person who has died before March 21, 1941.
§ 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.
§ 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.
Chapter 49 Escheats
§ 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.)
§ 682 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.)
Chapter 61 Executors and Administrators
Subchapter 1 General Provisions
§ 901 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.)
§ 904 Nonresident executor or administrator
(a) 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.
(b) 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.)
§ 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.)
§ 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.)
§ 907 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 5.
§ 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.)
§ 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.)
§ 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.)
§§ 911, 912 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 5.
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 917a Termination of appointment
(a) 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.
(b) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 930 Estate not willed
An executor shall administer the estate of the testator not disposed of by will.
§ 931 Limitations 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 except claims filed by the State on behalf of Vermont Medicaid, 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. Claims filed by the State on behalf of Vermont Medicaid must be filed in accordance with subsection 1203(d) of this title.
(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; 2023, No. 113 (Adj. Sess.), § E.307, eff. July 1, 2024.)
Subchapter 2 Special Administrators
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
Chapter 63 Inventory, Appraisal, and Accounts
§ 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.)
§ 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.)
§ 1053 Supplemental inventory
(a) 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.
(b) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§§ 1059, 1060 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 6.
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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
§§ 1151-1171 Repealed
[Repealed]
1975, No. 240 (Adj. Sess.), § 12.
Chapter 66 Settlement of Claims
§ 1201 Notice to creditors
(a) 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.
(b) 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.)
§ 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.)
§ 1203 Limitations on presentation of claims
(a) All claims against a decedent’s estate that arose before the death of the decedent, including claims of the State and any subdivision thereof except claims filed by the State on behalf of Vermont Medicaid, 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.
(b) 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.
(c) 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.
(d) Claims filed by the State on behalf of Vermont Medicaid must be presented 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, regardless of the date of the decedent’s death or when a decedent’s executor or administrator opens the estate.
(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; 2023, No. 113 (Adj. Sess.), § E.307.1, eff. July 1, 2024.)
§ 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.)
§ 1205 Classification of claims
(a) 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.
(b) 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.)
§ 1206 Allowance of claims
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.)
§ 1207 Payment of claims
(a) 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.
(b) 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.)
§ 1208 Individual liability of executor or administrator
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 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
(a) 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.
(b) 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.)
§ 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
(a) 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.
(b) 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.
(c) 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
§§ 1251-1273 Repealed
[Repealed]
1975, No. 240 (Adj. Sess.), § 12.
Chapter 69 Contingent Claims
§§ 1331-1341 Repealed
[Repealed]
1975, No. 240 (Adj. Sess.), § 12.
Chapter 71 Actions by and Against Executors and Administrators
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.)
§ 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.)
§§ 1403-1409 Repealed
[Repealed]
1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§§ 1414, 1415 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 7.
§ 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.)
§ 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.)
§ 1418 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 7.
Subchapter 2 Survival of Causes
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
Subchapter 3 Wrongful Death
§ 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.)
§ 1492 Action for death from wrongful act; procedure; damages
(a) 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.
(b) 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.
(c) 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.
(d) A party may appeal from the findings and decision rendered pursuant to subsection (c) of this section as in causes tried by a court.
(e) 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.
(f) The fee for the appointment of a personal representative to bring an action pursuant to subsection (a) of this section shall be the entry fee established by 32 V.S.A. § 1434(a)(1).
(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; 2021, No. 65, § 7, eff. June 7, 2021.)
Chapter 73 Proceedings for Recovery of Property Embezzled and Fraudulently Conveyed
§ 1551 Person suspected of embezzlement, concealing papers, or conveying decedent’s property
(a) 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.
(b) 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.)
§ 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.)
§ 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.)
§ 1554 Recovery of estate fraudulently conveyed by deceased
(a) 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.
(b) 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:
(A) with the intent to defraud creditors;
(B) to avoid a debt or duty; or
(C) 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.)
§ 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.)
§ 1556 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 8.
§ 1557 Sale of fraudulently conveyed estate; motion of creditors
(a) 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.
(b) 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.)
§ 1558 Creditor may act
(a) 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.
(b) 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.
(c) 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.)
§ 1559 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 8.
Chapter 75 License to Sell and Convey Real and Personal Property
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.)
§§ 1612, 1613 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 9.
§ 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.)
§§ 1615, 1616 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 9.
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.)
§ 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.)
§ 1653 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 9.
§ 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.)
§ 1655 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 9.
§ 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.)
§ 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.)
§ 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.)
§ 1659 License when deceased under contract to convey; court may grant; effect of deed
(a) 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.
(b) 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.)
§ 1660 Repealed
[Repealed]
2017 No. 195 (Adj. Sess.), § 9.
§ 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.)
§ 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.)
§§ 1663, 1664 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 9.
§ 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.)
Chapter 77 Decrees of Distribution or Partition of Estates
§ 1721 Distribution; court to order; persons entitled to shares may recover
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 1725 Application of advancement
(a) 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.
(b) 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.
(c) If the heirs or beneficiaries consent, a different application of the advancement may be made.
(Amended 2017, No. 195 (Adj. Sess.), § 10.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§§ 1732, 1733 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 1738 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 1743 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 10.
Chapter 79 Conveyance when Record Holder Deceased
§ 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.)
§ 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.)
§ 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.)
§ 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.)
Chapter 80 Waiver of Administration
§ 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
(a) 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)(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
(B) 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.
(b) 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.
(c) 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
(a) 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.
(b)(1) The affidavit of administration shall state that to the best of the knowledge and belief of the executor or administrator:
(A) there are no outstanding expenses of administration, or unpaid or unsatisfied debts, obligations, or claims attributable to the decedent’s estate; and
(B) 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
§ 1901 Commencement of small estate
(a) 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.
(b) 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.
(c) 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.)
§ 1902 Letters of administration, small estates, notice
(a) 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.
(b) 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.
(c) 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.)
§ 1903 Same; discharge upon payment of funeral expenses; residue
(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.
(b) 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.
(c) 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.)
Chapter 83 Uniform Disclaimer of Property Interests Act
§ 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.).)
§ 1952 Time of disclaimer—Delivery
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.)
§ 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.).)
§ 1954 Effect of disclaimer
(a) 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.
(b) 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.
(c) 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.).)
§ 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
§ 1971 Intentional killing; offender not to benefit
(a) 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.
(b) 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.)
Chapter 101 Probate Bonds; Executors, Administrators, Trustees, Guardians
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
Chapter 103 Mortgages and Leases by Executors, Administrators, Trustees, or Guardians
§ 2201 Mortgage of property by fiduciary; motion; order; license
(a) 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.
(b) 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.)
§ 2202 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 14.
§ 2203 Lease; of property by fiduciary; order; license
(a) 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.
(b) 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.)
§ 2204 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
Chapter 105 Trusts and Trustees
§ 2301 Repealed
[Repealed]
2009, No. 20, § 7.
§ 2302 Repealed
[Repealed]
2009, No. 20, § 8.
§ 2303 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 15.
§ 2304 Repealed
[Repealed]
2009, No. 20, § 9.
§§ 2305-2310 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 15.
§ 2311 Repealed
[Repealed]
2009, No. 20, § 10.
§ 2312 Repealed
[Repealed]
2009, No. 20, § 11.
§ 2313 Repealed
[Repealed]
2009, No. 20, § 12.
§ 2314 Repealed
[Repealed]
2009, No. 20, § 13.
§ 2315 Repealed
[Repealed]
2009, No. 20, § 14.
§ 2316 Repealed
[Repealed]
2009, No. 20, § 15.
§ 2317 Repealed
[Repealed]
2009, No. 20, § 16.
§ 2318 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 15.
§ 2319 Repealed
[Repealed]
2009, No. 20, § 17.
§ 2320 Repealed
[Repealed]
2009, No. 20, § 18.
§ 2321 Repealed
[Repealed]
2009, No. 20, § 19.
§ 2322 Repealed
[Repealed]
2009, No. 20, § 20.
§ 2323 Repealed
[Repealed]
2009, No. 20, § 21.
§ 2324 Repealed
[Repealed]
2009, No. 20, § 22.
§ 2325 Repealed
[Repealed]
2009, No. 20, § 23.
§ 2326 Repealed
[Repealed]
2009, No. 20, § 24.
§ 2327 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 15.
§ 2328 Repealed
[Repealed]
2009, No. 20, § 25.
§ 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.)
Chapter 107 Trusts and Trustees
§ 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.)
§ 2402 Probate Division of the Superior Court may appoint trustees; duties
(a) 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.
(b) 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.)
§ 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.)
§ 2404 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 16.
Chapter 109 Philanthropic Trusts
§§ 2501-2503 Repealed
[Repealed]
2017, No. 195 (Adj. Sess.), § 17.
Chapter 111 Guardianship
Subchapter 1 Jurisdiction of Probate Division of the Superior Court
§ 2601 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.)
Subchapter 2 Persons for Whom Guardians Appointed
§ 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:
(A) A child who the parties consent is in need of adult care because of any one of the following:
(i) The child’s custodial parent has a serious or terminal illness.
(ii) A custodial parent’s physical or mental health prevents the parent from providing proper care and supervision for the child.
(iii) The child’s home is no longer habitable as the result of a natural disaster.
(iv) A custodial parent of the child is incarcerated.
(v) A custodial parent of the child is on active military duty.
(vi) A custodial parent of the child is unavailable to care for the child because the parent has been subject to an adverse immigration action.
(vii) The parties have articulated and agreed to another reason that guardianship is in the best interests of the child.
(B) A child who is:
(i) abandoned or abused by the child’s parent;
(ii) without proper parental care, subsistence, education, medical, or other care necessary for the child’s well-being; or
(iii) 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:
(A) a parent is opposed to establishing the guardianship; or
(B) 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.
(8) “Standby guardianship” means a consensual guardianship agreement between the custodial parent and their chosen guardian that meets the requirements of section 2626a of this title, in which the custodial parent has been subject to an adverse immigration action that has rendered the parent unavailable to care for their child.
(9) “Adverse immigration action” means:
(A) arrest or apprehension by any federal law enforcement officer for an alleged violation of federal immigration law;
(B) arrest, detention, or custody by the Department of Homeland Security, or a federal, state, or local agency authorized by or acting on behalf of the Department of Homeland Security, for an alleged violation of federal immigration law;
(C) departure from the United States under an order of removal, deportation, exclusion, voluntary departure, or expedited removal or a stipulation of voluntary departure;
(D) the denial, revocation, or delay of the issuance of a visa or transportation letter by the Department of State;
(E) the denial, revocation, or delay of the issuance of a parole document or reentry permit by the Department of Homeland Security; or
(F) the denial of admission or entry into the United States by the Department of Homeland Security or other local or state officer acting on behalf of the Department of Homeland Security.
(Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2025, No. 31, § 2, eff. May 22, 2025.)
§ 2623 Petition for guardianship of minor; service
(a) 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;
(10) any prior or current court proceedings, child support matters, or parent-child contact orders involving the child;
(11) whether the petition seeks a standby guardianship and the reasons for the request, including the adverse immigration action that the custodial parent is subject to; and
(12) whether the petition is an emergency petition filed pursuant to subdivision 2625(f)(1) of this title.
(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.
(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:
(i) the identity of the parent is unknown;
(ii) the location of the parent is unknown and cannot be determined with reasonable effort; or
(iii)(I) the custodial parent is detained as the result of an adverse immigration action; and
(II) the guardian and the custodial parent’s attorney are unable to contact the custodial parent after making reasonable efforts.
(B) 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 (b).
(Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2025, No. 31, § 3, eff. May 22, 2025.)
§ 2624 Jurisdiction; transfer to Family Division
(a) 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.
(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.
(B) 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.
(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.
(B) 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.
(C) After the Superior judge and Probate judge confer under subdivision (2)(A) of this subsection (b), the Superior judge may:
(i) 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
(ii) transfer the guardianship petition back to the Probate Division for further proceedings after the pending matter in the Family Division has been adjudicated.
(D) 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.)
§ 2625 Hearing; counsel; guardian ad litem
(a) 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(b)(1) of this title.
(b) The child shall attend the hearing if the child 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 the child is less than 14 years of age.
(c) 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.
(d)(1) The child may be called as a witness only if the court finds after hearing that:
(A) the child’s testimony is necessary to assist the court in determining the issue before it;
(B) the probative value of the child’s testimony outweighs the potential detriment to the child; and
(C) 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.
(e) The court may appoint a guardian ad litem for the child on motion of a party or on the court’s own motion.
(f)(1) The court may grant an emergency guardianship petition filed ex parte by the proposed guardian, or by the custodial parent’s attorney in the case of a standby guardianship petition filed pursuant to section 2626a of this title, if the court finds that:
(A)(i) both parents are deceased or medically incapacitated; or
(ii) in the case of a standby guardianship petition filed pursuant to section 2626a of this title, the custodial parent has been subject to an adverse immigration action that renders the parent unavailable to care for the child; and
(B) 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; 2025, No. 31, § 4, eff. May 22, 2025.)
§ 2626 Consensual guardianship
(a) 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.
(b) 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.
(c) Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in probate proceedings) shall apply to hearings under this section.
(d) 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.
(e) 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.)
§ 2626a Consensual standby guardianship
(a)(1) If the petition requests a consensual standby guardianship, the petition shall include or be accompanied by a consent signed by the custodial parent attesting that the custodial parent understands the nature of the standby guardianship and knowingly and voluntarily consents to the standby guardianship.
(2) The consent required by this subsection shall be on a form approved by the Court Administrator.
(b)(1) The court shall schedule a hearing on the petition within 14 days. The custodial parent shall be permitted to appear at and participate in the hearing remotely.
(2) On or before the date of the hearing, the parties shall file an agreement between the proposed guardian and the custodial parents. The agreement shall provide:
(A) that the parties are creating a standby guardianship that is effective only if the custodial parent has been subject to an adverse immigration action that renders the custodial parent unavailable to care for the child;
(B) the responsibilities of the guardian;
(C) the responsibilities of the parents;
(D) the expected duration of the guardianship, if known;
(E) parent-child contact and parental involvement in decision making; and
(F) that the guardianship shall presumptively terminate if the custodial parent is released from custody and reunited with the child.
(3) Any party may notify the court that the guardianship is presumptively terminated pursuant to subdivision (2)(F) of this subsection.
(c) Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in probate proceedings) shall apply to hearings under this section.
(d) 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 because the parent has been subject to an adverse immigration action that renders the parent unavailable to care for the child;
(2) the child’s custodial parents knowingly and voluntarily consented to the standby guardianship;
(3) the guardian or the custodial parent’s attorney made reasonable efforts to notify the parent of the proceeding;
(4) the agreement is voluntary;
(5) the proposed guardian is suitable; and
(6) the guardianship is in the best interests of the child.
(e) There shall be a rebuttable presumption that the guardianship is in the best interests of the child if:
(1) the custodial parent has been subject to an adverse immigration action and is unavailable to care for their child;
(2) all parties consented to the guardianship; and
(3) the custodial parent is represented by an attorney.
(f) 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 within 45 days after the petition was filed, unless the court extends the time for issuing the order for good cause shown. 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 2025, No. 31, § 5, eff. May 22, 2025.)
§ 2627 Nonconsensual guardianship
(a) 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.
(b) The Vermont Rules of Evidence shall apply to a hearing under this section.
(c) 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.
(d) 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
(a) If the court grants a petition for guardianship of a child under subsection 2626(d), 2626a(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.
(b) 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:
(A) in a consensual case is consistent with the parties’ agreement; or
(B) 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; amended 2025, No. 31, § 6, eff. May 22, 2025.)
§ 2629 Powers and duties of guardian
(a) The court shall specify the powers and duties of the guardian in the guardianship order.
(b) The duties of a custodial guardian shall include the duty to:
(1) take custody of the child and establish the child’s 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 the parent’s last known address, including the following information:
(A) the current address of the child and each parent;
(B) the child’s health care and health needs, including any medical and mental health services the child received;
(C) 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;
(D) contact between the child and the child’s parents, including the frequency and duration of the contact and whether it was supervised;
(E) how the parents have been involved in decision making for the child;
(F) how the guardian has carried out the guardian’s responsibilities and duties, including efforts made to include the child’s parents in the child’s life;
(G) the child’s strengths, challenges, and any other areas of concern; and
(H) recommendations with supporting reasons as to whether the guardianship order should be continued, modified, or terminated.
(c) In the case of a standby guardianship petition filed pursuant to section 2626a of this title, the guardian shall provide status reports to the custodial parent at the parent’s last known email address and to the custodial parent’s attorney at the attorney’s last known address.
(Added 2013, No. 170 (Adj. Sess.), § 1; amended 2025, No. 31, § 7, eff. May 22, 2025.)
§ 2630 Parent-child contact
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) 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
(a) 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.
(b)(1) If the motion to terminate is made with respect to a consensual guardianship established under section 2626 of this title or a standby guardianship established under section 2626a 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. In the case of a standby guardianship established under section 2626a of this title, the court may, for good cause shown, accept filings that do not meet the format and signing requirements for the motion under Vermont Rules of Probate Procedure 10 and 11.
(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. In the case of a standby guardianship established under section 2626a of this title, the custodial parent shall be permitted to appear at and participate in the hearing remotely.
(3) If the court grants the motion to continue, it shall issue an order establishing a guardianship under section 2628 of this title.
(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; amended 2025, No. 31, § 8, eff. May 22, 2025.)
§ 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.]
§ 2641 Parents as joint guardians
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.
§ 2642 Repealed
[Repealed]
1959, No. 262, § 37, eff. June 11, 1959.
§ 2643 Release by court and parent on behalf of minor
(a) 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.
(b) 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.)
§ 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.)
§ 2645 Repealed
[Repealed]
2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 2646 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.
§ 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.)
§ 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.)
§ 2651 Repealed
[Repealed]
2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 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.
§ 2653 Repealed
[Repealed]
2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 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.)
§ 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.)
§ 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.)
§ 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.
§ 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.)
§ 2659 Financial guardianship; minors
(a) 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.
(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:
(A) the names and addresses of the parents, the child, and the proposed guardian;
(B) the proposed guardian’s relationship to the child; and
(C) 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.
(c) The Probate Division shall schedule a hearing upon the filing of the petition and shall provide notice of the hearing to all parties.
(d) 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.
(e) 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:
(A) special needs trusts;
(B) trusts for the benefit of the minor payable over the minor’s lifetime or for such shorter periods as deemed reasonable; or
(C) 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.)
§ 2660 Statement of legislative intent
(a) 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.
(b) 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.)
§ 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:
(A) Adequate food.
(B) Clothing.
(C) Health care.
(D) Any other material needs.
(E) 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.
(F) 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
(a) A permanent guardian shall have parental rights and responsibilities for the child that include:
(1) Providing the child with:
(A) A healthy and safe living environment and daily care.
(B) Education.
(C) Necessary and appropriate health care, including medical, dental, and mental health care.
(2) Making decisions regarding:
(A) Travel.
(B) Management of the child’s income and assets.
(C) The child’s right to marry or enlist in the armed forces.
(D) Representation of the child in legal actions.
(E) Any other matter that involves the child’s welfare and upbringing.
(b) 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
(a) 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.
(b) 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.
(c) 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.)
§ 2664 Creation of permanent guardianship
(a) 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:
(A)(i) is emotionally, mentally, and physically suitable to become the permanent guardian; and
(ii) is financially suitable, with kinship guardianship assistance provided for in 33 V.S.A. § 4903 if applicable, to become the permanent guardian;
(B) has expressly committed to remain the permanent guardian for the duration of the child’s minority; and
(C) 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.
(b) The parent voluntarily may consent to the permanent guardianship, and shall demonstrate an understanding of the implications and obligations of the consent.
(c) 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.
(d) 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.)
§ 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.)
§ 2666 Modification; termination
(a) 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.
(b) 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.
(c) 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.
(d) The burden of proof shall be on the party seeking the modification or termination.
(e) 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.)
§ 2667 Order for visitation, contact, or information; immediate harm to the minor
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 2671 Voluntary guardianship
(a) 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.
(b) 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.
(c) 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.
(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:
(A) whether the petitioner is uncoerced;
(B) whether the petitioner understands the nature, extent, and consequences of the proposed guardianship; and
(C) whether the petitioner understands the procedures for terminating the guardianship.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(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:
(A) failure to render an account after having been duly cited by the court;
(B) failure to perform an order or decree of the court;
(C) a finding that the guardian has become incapable of or unsuitable for exercising his or her powers; or
(D) the death of the guardian.
(2) The court may also consider termination of the guardianship on the court’s own motion.
(j) 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.
(k) 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.
(l) At the termination of a voluntary guardianship, the guardian shall render a final accounting as required by section 2921 of this title.
(m) 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.)
§ 2672 Repealed
[Repealed]
1979, No. 76, § 20.
§ 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.
§ 2682 Repealed
[Repealed]
2005, No. 174 (Adj. Sess.), § 140(3).
§ 2683 Repealed
[Repealed]
1979, No. 76, § 20.
§ 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.)
§ 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.
§ 2686 Repealed
[Repealed]
1979, No. 76, § 20.
§ 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.)
§ 2688 Repealed
[Repealed]
1967, No. 147, § 53(b), eff. Oct. 1, 1968.
§ 2689 Repealed
[Repealed]
2005, No. 174 (Adj. Sess.), § 140(3).
§ 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.)
§ 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.)
§ 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.)
§ 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.
§ 2694 Repealed
[Repealed]
1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.
§ 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.)
§ 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.)
Subchapter 3 Bonds
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.
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.)
§ 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.)
§ 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.
§ 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.)
§ 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.)
§ 2796 Citation; costs
Such citation shall issue and costs be taxed, as provided in case of similar citations in the settlement of estates.
§ 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.
§ 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.
§ 2799 Repealed
[Repealed]
1979, No. 76, § 20.
§ 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.)
§ 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.
§ 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.)
§ 2803 Court may order personalty sold and proceeds invested in real estate
(a) 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.
(b) 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.)
§ 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.)
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.)
§ 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.
§ 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.)
§§ 2844, 2845 Repealed
[Repealed]
1985, No. 144 (Adj. Sess.), § 163.
§ 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.)
§ 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.
§ 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.
§ 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.
§ 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.
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.)
§ 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.)
§ 2883 Term of license
Such license shall not continue in force more than two years.
§ 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.
§ 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.)
§ 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.)
§ 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.)
§ 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.
§ 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.)
§ 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.)
§ 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.
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.)
§ 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.
§ 2923 Property may be ordered into hands of nonresident guardian; proceedings
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)
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.)
§ 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.)
§ 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.)
§ 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.)
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.)
§ 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.)
§ 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.)
§ 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.)
§ 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.
§ 3006 Repealed
[Repealed]
1979, No. 76, § 20.
§ 3007 Repealed
[Repealed]
2005, No. 174 (Adj. Sess.), § 140(3).
§§ 3008-3010 Repealed
[Repealed]
1979, No. 76, § 20.
§ 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.)
Subchapter 10 Appeals
§§ 3041-3044 Repealed
[Repealed]
1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.
Subchapter 11 Powers of Attorney
§§ 3051, 3052 Repealed
[Repealed]
2001, No. 135 (Adj. Sess.), § 18.
Subchapter 12 Persons in Need of Guardianship
§ 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.)
§ 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:
(A) is at least 18 years of age; and
(B) 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:
(i) significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or
(ii) 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.)
§ 3062 Jurisdiction; review of guardian’s actions
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 3064 Notice of petition and hearing
(a) 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.
(b) 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.)
§ 3065 Counsel
(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:
(A) shall appoint counsel for the respondent when an initial petition for guardianship is filed;
(B) shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and
(C) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 3067 Evaluation and report; background check; release of evaluation
(a) 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.
(b) 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.
(c) 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:
(A) those aspects of his or her personal care and financial affairs that the respondent can manage without supervision or assistance;
(B) 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;
(C) those aspects of his or her personal care and financial affairs that the respondent is unable to manage without the supervision of a guardian;
(D) 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.
(d) 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.
(e) 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.)
§ 3068 Hearing
(a) 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.
(b) 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.
(c) 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.
(d) The petitioner may be represented by counsel in any proceedings brought under this chapter.
(e)(1) 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.
(2) If a motion to withdraw the petition is made before the final hearing, the court shall dismiss the petition and seal the records of the proceeding.
(f) 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.
(g) 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; 2025, No. 64, § 13, eff. June 12, 2025.)
§ 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:
(A) the preference is unreasonable and would result in actual harm; or
(B) 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.)
§ 3069 Powers of a guardian
(a) 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.
(b) 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.
(c) 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.
(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.
(e) 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.
(f) 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.)
§ 3070 Repealed
[Repealed]
2007, No. 186 (Adj. Sess.), § 1.
§ 3071 Duties of guardian
(a) The guardian shall maintain close contact with the person under guardianship and encourage maximum self-reliance on the part of the person under guardianship.
(b) 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.
(c) 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.)
§ 3072 Guardians; individuals who may serve
(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.
(b) 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.)
§ 3073 Change of residential placement
(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.
(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.
(c) 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.)
§ 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.)
§ 3075 Consent for medical or dental treatment
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g)(1) The guardian shall obtain prior written approval by the Probate Division of the Superior Court following notice and hearing:
(A) If the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise.
(B) 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.
(C) 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.
(D) 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.
(h) 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.)
§ 3076 Annual reports; final accounting; fees
(a) The guardian shall file an annual report with the appointing court within 30 days of the anniversary date of the appointment.
(b) 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.
(c) 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.
(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.)
§ 3077 Termination and modification of guardianship
(a) 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.
(b) 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.
(c) Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.
(d) Marriage of the person under guardianship shall not extinguish a guardian’s authority.
(e) 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.)
§ 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.)
§ 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.)
§ 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
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
Subchapter 13 Public Guardian
§ 3091 Office of Public Guardian established
(a) 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.
(b) 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.
(c) 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.)
§ 3092 Appointment of the Office of Public Guardian
(a) 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.
(b) Neither the Office of Public Guardian or its designees may petition for guardianship.
(c) 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.)
§ 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.)
§ 3094 Duty to seek private guardian
(a) 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.
(b) 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.)
§ 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.)
§ 3096 Office of Public Guardian to offer assistance
(a) 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.
(b) 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.)
Subchapter 14 Vulnerable Noncitizen Children
§ 3098 Vulnerable noncitizen children
(a) Definitions. As used in this subchapter:
(1) “Child” or “children” means an unmarried individual or individuals who have not yet attained 21 years of age and who are not a U.S. citizen or citizens.
(2) “Court” means any court that has jurisdiction over an unmarried individual or individuals who have not yet attained 21 years of age and who are not a U.S. citizen or citizens, including the Probate Division and the Family Division of the Superior Court.
(3) “Dependent on the court” means subject to the jurisdiction of a court competent to make decisions concerning the protection, well-being, care, and custody of a child for findings, orders, or referrals to support the health, safety, and welfare of a child or to remedy the effects on a child of abuse, abandonment, or other similar circumstances.
(4) “Noncitizen” means any person who is not a U.S. citizen.
(5) “Similar circumstances” means a condition or conditions that have an effect on a child comparable to abuse, neglect, or abandonment, including the death of a parent.
(6) “Vulnerable” means there is reasonable cause to suspect that a child’s health, safety, or welfare is in jeopardy due to abuse, neglect, abandonment, or similar circumstances and that return to the child’s or the child’s parent’s country of origin or country of last habitual residence would not be in the best interests of the child.
(b) Jurisdiction. A court reviewing a petition under this section shall have jurisdiction under Vermont law to make judicial determinations regarding the custody and care of children.
(c)(1) Procedure for petition. A vulnerable noncitizen child, or a person interested in the welfare of a vulnerable noncitizen child, may petition the court for special findings to protect the child and obtain relief from the underlying abandonment, abuse, neglect, or similar circumstances. The court shall review the petition, including any supporting affidavits and other evidence presented, and issue findings of fact that determine whether the vulnerable noncitizen child:
(A) Is a dependent of the court or 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.
(B) Has suffered from abuse, neglect, abandonment, or similar circumstances.
(C) May not be viably reunified with one or both parents due to abuse, neglect, abandonment, or a similar circumstance.
(D) 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) Additional findings. If requested by a party, the court may make additional findings that are supported by evidence and Vermont law.
(3) Health, safety, and welfare considerations. The health, safety, and welfare of the child must be of paramount concern when the court considers the best interests of the child. In making the determination whether it is in the best interests of the child to be returned to the child’s or child’s parent’s previous country of nationality or country of last habitual residence, the court shall consider whether present or past living conditions will adversely affect the child’s physical, mental, or emotional health.
(4) Guardianships. For purposes of this section, the term child or minor shall include a person who is less than 21 years of age and who consents to the appointment or continuation of a guardian after 18 years of age.
(d) Notice. If the identity or location of the vulnerable noncitizen child’s parents is unknown or if the parents reside outside the United States, the court may serve notice using any alternative method of service the court determines is appropriate or waive service.
(e) Expeditious adjudication. When it is in the best interests of the vulnerable noncitizen child, a court shall hear, adjudicate, and issue findings of fact on any petition for special findings under this section as soon as it is administratively feasible and prior to the vulnerable noncitizen child attaining 21 years of age.
(f) Referral for services or protection. A vulnerable noncitizen child who is the subject of a petition for special findings under this section may be referred for psychiatric, psychological, educational, occupational, medical, dental, or social services or for protection against human trafficking or domestic violence; provided, however, that a child’s participation in any referred service is voluntary.
(g) Additional available remedies under Vermont law; similar findings of fact.
(1) This section shall not limit a vulnerable noncitizen child from petitioning for special findings for a petition under any other provision of law or from any other rights and remedies available to the child under any other provision of law.
(2) This section shall not limit the court from issuing similar findings of fact to those described in this section in any other proceeding concerning the vulnerable noncitizen child.
(h) Construction. This section shall be liberally construed to its legislative purpose.
(i) Confidentiality. 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, nationality, or place of birth 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.
(Added 2019, No. 167 (Adj. Sess.), § 29, eff. October 7, 2020; amended 2021, No. 98 (Adj. Sess.), § 1, eff. July 1, 2022; 2023, No. 46, § 13, eff. June 5, 2023.)
Chapter 113 Uniform Veterans' Guardianship Act
§ 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.)
§ 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.
§ 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.
§ 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.
§ 3105 Appointment of guardian
(a) 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.
(b) 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.
(c) 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.
(d) 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.
§ 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.
§ 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.
§ 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.
§ 3109 Bond
(a) 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.
(b) 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.
§ 3110 Petitions and accounts, notices and hearings
(a) 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.
(b) 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.
(c) 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.
(d) 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 3115 Purchase of home for ward
(a) 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.
(b) 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.
§ 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.
§ 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.
§ 3118 Commitment to Veterans’ Administration or other agency of U.S. government
(a) 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.
(b) 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.
(c) 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.
(d) 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.
§ 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.
§ 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.
§ 3121 Liberal construction
This chapter shall be so construed as to make uniform the law of those states which enact it.
Chapter 114 Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
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
(a) 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.
(b) 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
(a) 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.
(b) 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
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) 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:
(A) 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
(B) 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:
(i) a petition for an appointment or order is not filed in the respondent’s home state;
(ii) an objection to the Probate Division’s jurisdiction is not filed by a person required to be notified of the proceeding; and
(iii) 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
(a) 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.
(b) 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.)
§ 3166 Appropriate forum
(a) 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.
(b) 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.
(c) 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
(a) 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:
(A) 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;
(B) 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
(C) 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.
(b) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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
(a) 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.
(b) 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
(a) 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.
(b) 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.)
§ 3193 Transitional provision
(a) This chapter applies to guardianship and protective proceedings begun on or after July 1, 2011.
(b) 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.)
Chapter 115 Vermont Uniform Transfers to Minors Act
§§ 3201-3209 Repealed
[Repealed]
2015, No. 7, § 2.
§ 3210 [Reserved for future use.]
§ 3211 Definitions
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:
(A) any interest in property transferred to a custodian under this chapter; and
(B) 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.)
§ 3212 Scope and jurisdiction
(a) 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.
(b) 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.
(c) 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.)
§ 3213 Nomination of custodian
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 3215 Transfer authorized by will or trust
(a) 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.
(b) 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.
(c) 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.)
§ 3216 Other transfer by fiduciary
(a) 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.
(b) 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.
(c) 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.)
§ 3217 Transfer by obligor
(a) 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.
(b) 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.)
§ 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.)
§ 3219 Manner of creating custodial property and effecting transfer; designation of initial custodian; control
(a) Custodial property is created and a transfer is made whenever:
(1) An uncertificated security or a certificated security in registered form is either:
(A) 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
(B) 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:
(A) 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
(B) 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:
(A) 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.”
(B) 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.
(b) An instrument in the following form satisfies the requirements of subdivisions (a)(1)(B) and (a)(7) of this section:
“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)”
(c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
(Added 2015, No. 7, § 1.)
§ 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.)
§ 3221 Validity and effect of transfer
(a) 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.
(b) 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.
(c) 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.)
§ 3222 Care of custodial property
(a) 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.
(b) 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.
(c) 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.
(d) 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.”
(e) 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.)
§ 3223 Powers of custodian
(a) 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.
(b) This section does not relieve a custodian from liability for breach of section 3222 of this title.
(Added 2015, No. 7, § 1.)
§ 3224 Use of custodial property
(a) 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.
(b) 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.
(c) 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.)
§ 3225 Custodian’s expenses, compensation, and bond
(a) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties.
(b) 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.
(c) Except as provided in subsection 3228(f) of this title, a custodian need not give a bond.
(Added 2015, No. 7, § 1.)
§ 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.)
§ 3227 Liability to third persons
(a) 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.
(b) 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.
(c) 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.)
§ 3228 Renunciation, resignation, death, or removal of custodian; designation of successor custodian
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.)
§ 3229 Accounting by and determination of liability of custodian
(a) 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.
(b) A successor custodian may petition the court for an accounting by the predecessor custodian.
(c) 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.
(d) 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.)
§ 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.)
§ 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.)
§ 3232 Effect on existing custodianships
(a) 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.
(b) 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.)
§ 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.)
Chapter 117 Uniform Principal and Income Act [Repealed]
§§ 3301-3314 Repealed
[Repealed]
2011, No. 114 (Adj. Sess.), § 2.
Chapter 118 Uniform Principal and Income 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.)
§ 3323 Fiduciary duties; general principles
(a) 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.
(b) 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.)
§ 3324 Trustee’s power to adjust
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.)
§ 3325 Judicial control of discretionary power
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 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:
(A) including in net income all income from property used to discharge liabilities;
(B) 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
(C) 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:
(A) 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
(B) 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.)
§ 3332 Distribution to residuary and remainder beneficiaries
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
Subchapter 3 Apportionment at Beginning and End of Income Interest
§ 3341 When right to income begins and ends
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 3342 Apportionment of receipts and disbursements when decedent dies or income interest begins
(a) 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.
(b) 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.
(c) 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.)
§ 3343 Apportionment when income interest ends
(a) 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.
(b) 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.
(c) 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.)
Subchapter 4 Allocation of Receipts During Administration of Trust
§ 3351 Character of receipts
(a) 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.
(b) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity, including reinvested cash dividends.
(c) 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.
(d) 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.
(e) 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.
(f) 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.)
§ 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.)
§ 3353 Business and other activities conducted by trustee
(a) 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.
(b) 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.
(c) 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.)
§ 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.)
§ 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.)
§ 3356 Obligation to pay money
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.)
§ 3357 Insurance policies and similar contracts
(a) 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.
(b) 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.
(c) This section does not apply to a contract to which section 3359 of this title applies.
(Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 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.)
§ 3359 Deferred compensation, annuities, and similar payments
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) This section does not apply to a payment to which section 3360 of this title applies.
(Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3360 Liquidating asset
(a) 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.
(b) 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.)
§ 3361 Minerals, water, and other natural resources
(a) 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.
(b) 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.
(c) 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.
(d) 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.)
§ 3362 Timber
(a) 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.
(b) 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.
(c) This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it become subject to the trust.
(d) 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.)
§ 3363 Property not productive of income
(a) 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.
(b) 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.)
§ 3364 Derivatives and options
(a) 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.
(b) 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.
(c) 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.)
§ 3365 Asset-backed securities
(a) 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.
(b) 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.
(c) 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.)
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.)
§ 3372 Disbursements from principal
(a) 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.
(b) 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.)
§ 3373 Transfers from income to principal for depreciation
(a) 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.
(b) 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.
(c) An amount transferred to principal need not be held as a separate fund.
(Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3374 Transfers from income to reimburse principal
(a) 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.
(b) 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.
(c) 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.)
§ 3375 Income taxes
(a) A tax required to be paid by a trustee based on receipts allocated to income shall be paid from income.
(b) 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.
(c) 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.
(d) 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.)
§ 3376 Adjustments between principal and income because of taxes
(a) 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.
(b) 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.
(c) 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.)
Chapter 119 Uniform Management of Institutional Funds Act
§§ 3401-3407 Repealed
[Repealed]
2008, No. 9, § 1, eff. May 5, 2009.
Chapter 120 Uniform Prudent Management of Institutional Funds Act
§ 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:
(A) a person, other than an individual, organized and operated exclusively for charitable purposes;
(B) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or
(C) 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:
(A) program-related assets;
(B) a fund held for an institution by a trustee that is not an institution; or
(C) 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
(a) 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.
(b) 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.
(c) 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.
(d) An institution may pool two or more institutional funds for purposes of management and investment.
(e) 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:
(A) general economic conditions;
(B) the possible effect of inflation or deflation;
(C) the expected tax consequences, if any, of investment decisions or strategies;
(D) the role that each investment or course of action plays within the overall investment portfolio of the fund;
(E) the expected total return from income and the appreciation of investments;
(F) other resources of the institution;
(G) the needs of the institution and the fund to make distributions and to preserve capital; and
(H) 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
(a) 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.
(b) To limit the authority to appropriate for expenditure or accumulate under subsection (a) of this section, a gift instrument must specifically state the limitation.
(c) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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
§§ 3451-3467 Recodified. 2003, No. 162 (Adj. Sess.), § 15. [Repealed]
Chapter 125 Vermont Revised Uniform Fiduciary Access to Digital Assets Act
§ 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:
(A) has been sent or received by a user;
(B) 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
(C) 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
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) 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.
(c) 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
(a) 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.
(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(c) A custodian need not disclose under this chapter a digital asset deleted by a user.
(d) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(B) evidence linking the account to the user; or
(C) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subdivision (A) of this subdivision (5);
(ii) 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;
(iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(iv) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(B) evidence linking the account to the user;
(C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or
(D) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subdivision (A) of this subdivision (4); or
(ii) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(B) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(B) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(B) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(B) evidence linking the account to the trust.
(Added 2017, No. 13, § 1.)
§ 3564 Disclosure of digital assets to guardian of person under guardianship
(a) 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.
(b) 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:
(A) 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
(B) evidence linking the account to the person under guardianship.
(c) 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
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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:
(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(B) evidence linking the account to the user; or
(C) 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
(a) 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.
(b) 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.
(c) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
(d) 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.
(e) 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.
(f) 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.)
Chapter 127 Vermont Uniform Power of Attorney Act
Subchapter 1 General Provisions
§ 4001 Short title
This chapter may be cited as the Vermont Uniform Power of Attorney Act.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4002 Definitions
As used in this chapter:
(1) “Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an original agent, coagent, successor agent, and a person to which an agent’s authority is delegated.
(2) “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity or unavailability.
(3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(4) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(5) “General power of attorney” means a power of attorney that is not limited by its terms to a specified transaction or series of transactions, to a specific purpose, or to a specific asset or set of assets, or a power of attorney that grants an agent the authority to do any one or more of the acts described in subsection 4031(e) of this title.
(6) “Good faith” means honesty in fact.
(7)(A) “Incapacity” means the inability of an individual to manage property or business affairs because the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.
(B) “Unavailability” means the inability of an individual to manage property or business affairs because the individual is:
(i) missing;
(ii) detained, including incarcerated in a penal system; or
(iii) outside the United States and unable to return.
(8) “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) “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.
(10) “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors, or the creditors of the principal’s estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.
(11) “Principal” means an individual who grants authority to an agent in a power of attorney.
(12) “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein.
(13) “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.
(14) “Sign” means, with present intent to authenticate or adopt a record:
(A) to execute or adopt a tangible symbol; or
(B) to attach to or logically associate with the record an electronic sound, symbol, or process.
(15) “State” means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(16) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4003 Applicability
This chapter applies to all powers of attorney except:
(1) a power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;
(2) a power to make health-care decisions;
(3) a proxy or other delegation to exercise voting rights or management rights with respect to an entity;
(4) a power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose; and
(5) a power of reciprocal insurers under 8 V.S.A. § 4838.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4004 Power of attorney is durable
A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity or unavailability of the principal.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4005 Execution of power of attorney
A power of attorney shall be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4006 Validity of power of attorney
(a) A power of attorney executed in this State on or after July 1, 2023 is valid if its execution complies with section 4005 of this title.
(b) A power of attorney executed in this State before July 1, 2023 is valid if its execution complied with the law of this State as it existed at the time of execution.
(c) A power of attorney executed other than in this State is valid in this State if, when the power of attorney was executed, the execution complied with:
(1) the law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to section 4007 of this title; or
(2) the requirements for a military power of attorney pursuant to 10 U.S.C. § 1044b, as amended.
(d) Except as otherwise provided by statute other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
(e) Except as otherwise provided by statute other than this chapter, a power of attorney that complies with this chapter is valid.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4007 Meaning and effect of power of attorney
The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4008 Nomination of guardian; relation of agent to court-appointed fiduciary
(a) In a power of attorney, a principal may nominate a guardian of the principal’s estate or a guardian of the principal’s person for consideration by the court if protective proceedings for the principal’s estate or person are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal’s most recent nomination.
(b) If, after a principal executes a power of attorney, a court appoints a guardian of the principal’s estate or other fiduciary charged with the management of some or all of the principal’s property, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is not terminated, and the agent’s authority continues unless limited, suspended, or terminated by the court.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4009 When power of attorney effective
(a) A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.
(b) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.
(c) If a power of attorney becomes effective upon the principal’s incapacity or unavailability and the principal has not authorized a person to determine whether the principal is incapacitated or unavailable, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:
(1) a licensed health care professional working within the professional’s scope of practice, including a physician licensed pursuant to 26 V.S.A. chapter 23 or 33 and a psychologist licensed pursuant to 26 V.S.A. chapter 55, that the principal is incapacitated within the meaning of subdivision 4002(7)(A) of this chapter; or
(2) an attorney at law, a judge, or an appropriate governmental official that the principal is unavailable within the meaning of 4002(7)(B) of this chapter.
(d) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated or unavailable may act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act; Sections 1171 through 1179 of the Social Security Act; 42 U.S.C. § 1320d, as amended; and applicable regulations to obtain access to the principal’s health-care information and communicate with the principal’s health-care provider.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4010 Termination of power of attorney or agent’s authority
(a) A power of attorney terminates when:
(1) the principal dies;
(2) the principal becomes incapacitated or unavailable, if the power of attorney is not durable;
(3) the principal revokes the power of attorney;
(4) the power of attorney provides that it terminates;
(5) the purpose of the power of attorney is accomplished; or
(6) the principal revokes the agent’s authority or the agent dies, becomes incapacitated or unavailable, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.
(b) An agent’s authority terminates when:
(1) the principal revokes the authority;
(2) the agent dies, becomes incapacitated or unavailable, or resigns;
(3) a petition for divorce, annulment, separation, or a decree of nullity is filed with respect to the agent’s marriage to the principal, unless the power of attorney otherwise provides; or
(4) the power of attorney terminates.
(c) Unless the power of attorney otherwise provides, an agent’s authority is exercisable until the authority terminates under subsection (b) of this section, notwithstanding a lapse of time since the execution of the power of attorney.
(d) Termination of an agent’s authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.
(e) Incapacity or unavailability of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity or unavailability, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.
(f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.
(g) The principal of a power of attorney may not revoke the power of attorney if the principal has been determined to be incapacitated.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4011 Co-agents and successor agents
(a) A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.
(b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated or unavailable, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent:
(1) has the same authority as that granted to the original agent; and
(2) may not act until all predecessor agents have resigned, died, become incapacitated or unavailable, are no longer qualified to serve, or have declined to serve.
(c) Except as otherwise provided in the power of attorney and subsection (d) of this section, an agent who does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.
(d) An agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated or unavailable, take any action reasonably appropriate in the circumstances to safeguard the principal’s best interests. An agent who fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4012 Reimbursement and compensation of agent
Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4013 Agent’s acceptance
Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4014 Agent’s duties
(a) Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall:
(1) act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and otherwise in the principal’s best interests;
(2) act in good faith; and
(3) act only within the scope of authority granted in the power of attorney.
(b) Except as otherwise provided in the power of attorney or other provision of this chapter, an agent that has accepted appointment shall have no further obligation to act under the power of attorney. However, with respect to any action taken by the agent under the power of attorney, the agent shall:
(1) act loyally for the principal’s benefit;
(2) act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interests;
(3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
(4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(5) cooperate with a person who has authority to make health-care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and otherwise act in the principal’s best interests; and
(6) attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interests based on all relevant factors, including:
(A) the value and nature of the principal’s property;
(B) the principal’s foreseeable obligations and need for maintenance;
(C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
(D) eligibility for a benefit, a program, or assistance under a statute or regulation.
(c) An agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(d) An agent who acts with care, competence, and diligence for the best interests of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(g) An agent who exercises authority to delegate to another person the authority granted by the principal or who engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.
(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4015 Exoneration of agent
A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal’s successors in interest except to the extent the provision:
(1) relieves the agent of liability for breach of duty committed:
(A) dishonestly;
(B) in bad faith;
(C) with reckless indifference to the purposes of the power of attorney;
(D) through willful misconduct;
(E) through gross negligence; or
(F) with actual fraud; or
(2) was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4016 Judicial relief
(a) The following persons may petition a court to construe a power of attorney or review the agent’s conduct and grant appropriate relief:
(1) the principal or the agent;
(2) a guardian or other fiduciary acting for the principal, including an executor or administrator of the estate of a deceased principal;
(3) a person authorized to make health-care decisions for the principal;
(4) the principal’s spouse, parent, or descendant;
(5) an individual who would qualify as an heir of the principal under the laws of intestacy;
(6) a person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal who has a financial interest in the principal’s estate;
(7) a governmental agency having regulatory authority to protect the welfare of the principal;
(8) the principal’s caregiver or another person who demonstrates sufficient interest in the principal’s welfare; and
(9) a person asked to accept the power of attorney.
(b) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4017 Agent’s liability
An agent who violates this chapter is liable to the principal or the principal’s successors in interest for the amount required to:
(1) restore the value of the principal’s property to what it would have been had the violation not occurred;
(2) reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid on the agent’s behalf;
(3) reimburse the reasonable attorney’s fees and costs incurred by the principal or the principal’s successor in interest in pursuing rectification of the violation by the agent; and
(4) pay such other amounts, damages, costs, or expenses that the court may award.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4018 Agent’s resignation; notice
Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving written notice to the principal and, if the principal is incapacitated or unavailable:
(1) to the guardian, if one has been appointed for the principal, and a coagent or successor agent; or
(2) if there is no person described in subdivision (1) of this section, to:
(A) the principal’s caregiver;
(B) another person reasonably believed by the agent to have sufficient interest in the principal’s welfare; or
(C) a governmental agency having authority to protect the welfare of the principal.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4019 Acceptance of and reliance upon acknowledged power of attorney
(a) As used in this section and section 4020 of this title, “acknowledged” means purportedly verified before a notary public or other individual authorized to take acknowledgements.
(b) A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under section 4005 of this title that the signature is genuine.
(c) A person who effects a transaction in reliance upon an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid, or terminated; that the purported agent’s authority is void, invalid, or terminated; or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect; the agent’s authority were genuine, valid, and still in effect; and the agent had not exceeded and has properly exercised the authority.
(d) A person who is asked to accept an acknowledged power of attorney may request and rely upon, without further investigation:
(1) an agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney; or
(2) an English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and
(3) an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.
(e) A certification presented pursuant to subsection (d) of this section shall state that:
(1) the person presenting themselves as the agent and signing the affidavit or declaration is the person so named in the power of attorney;
(2) if the agent is named in the power of attorney as a successor agent, the circumstances or conditions stated in the power of attorney that would cause that person to become the acting agent have occurred;
(3) to the best of the agent’s knowledge, the principal is still alive;
(4) to the best of the agent’s knowledge, at the time the power of attorney was signed, the principal was competent to execute the document and was not under undue influence to sign the document;
(5) all events necessary to making the power of attorney effective have occurred;
(6) the agent does not have actual knowledge of the revocation, termination, limitation, or modification of the power of attorney or of the agent’s authority;
(7) if the agent was married to or in a state-registered domestic partnership with the principal at the time of execution of the power of attorney, then at the time of signing the affidavit or declaration, the marriage or state-registered domestic partnership of the principal and the agent has not been dissolved or declared invalid, and no action is pending for the dissolution of the marriage or domestic partnership for legal separation; and
(8) the agent is acting in good faith pursuant to the authority given under the power of attorney.
(f) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than seven business days after the power of attorney is presented for acceptance.
(g) For purposes of this section and section 4020 of this title, a person who conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4020 Liability for refusal to accept acknowledged power of attorney
(a) Except as otherwise provided in subsection (b) of this section:
(1) a person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under subsection 4019(d) of this title not later than seven business days after presentation of the power of attorney for acceptance;
(2) if a person requests a certification, a translation, or an opinion of counsel under subsection 4019(d) of this title, the person shall accept the power of attorney not later than five business days after receipt of the certification, translation, or opinion of counsel; and
(3) a person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented.
(b) A person is not required to accept an acknowledged power of attorney if:
(1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(2) engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal or state law;
(3) the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
(4) a request for a certification, a translation, or an opinion of counsel under subsection 4019(d) of this title is refused;
(5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under subsection 4019(d) of this title has been requested or provided; or
(6) the person makes, or has actual knowledge that another person has made, a report to the Adult Protective Services program or other appropriate entity within the Department of Disabilities, Aging, and Independent Living or to a law enforcement agency stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
(c) A person who refuses in violation of this section to accept an acknowledged power of attorney is subject to:
(1) a court order mandating acceptance of the power of attorney; and
(2) liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.
(Added 2023, No. 60, § 1, eff. July 1, 2023; amended 2023, No. 161 (Adj. Sess.), § 14, eff. June 6, 2024.)
§ 4021 Principles of law and equity
Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4022 Laws applicable to financial institutions and entities
This chapter does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4023 Remedies under other law
The remedies under this chapter are not exclusive and do not abrogate any right or remedy under the law of this State other than this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
Subchapter 2 Authority
§ 4031 Authority that requires specific grant; grant of general authority
(a) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(1) create, amend, revoke, or terminate an inter vivos trust;
(2) make a gift;
(3) create or change rights of survivorship;
(4) create or change a beneficiary designation;
(5) delegate authority granted under the power of attorney;
(6) waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(7) authorize another person to exercise the authority granted under the power of attorney;
(8) exercise authority over the content of an electronic communication of the principal in accordance with chapter 125 of this title (Vermont Revised Uniform Fiduciary Access to Digital Assets Act);
(9) disclaim property, including a power of appointment;
(10) exercise a written waiver of spousal rights under section 323 of this title;
(11) exercise authority with respect to intellectual property, including copyrights, contracts for payment of royalties, and trademarks; or
(12) convey, or revoke or revise a grantee designation, by enhanced life estate deed pursuant to chapter 6 of Title 27 or under common law.
(b) Notwithstanding a grant of authority to do an act described in subsection (a) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
(c) Subject to subsections (a), (b), (d), and (e) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in sections 4034–4046 of this title.
(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to section 4047 of this title.
(e) Subject to subsections (a), (b), and (d) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this State and whether or not the authority is exercised or the power of attorney is executed in this State.
(g) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4032 Incorporation of authority
(a) An agent has authority described in this chapter if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in sections 4034–4047 of this title or cites the section in which the authority is described.
(b) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in sections 4034–4047 of this title or a citation to a section of sections 4034–4047 of this title incorporates the entire section as if it were set out in full in the power of attorney.
(c) A principal may modify authority or a writing or other record incorporated by reference.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4033 Construction of authority generally
Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in sections 4034–4047 of this title or that grants to an agent authority to do all acts that a principal could do pursuant to subsection 4031(c) of this title, a principal authorizes the agent, with respect to that subject, to:
(1) demand, receive, and obtain, by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;
(2) contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;
(3) execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;
(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
(5) seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
(6) engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;
(7) prepare, execute, and file a record, report, or other document to safeguard or promote the principal’s interest under a statute or regulation;
(8) communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality on behalf of the principal;
(9) access communications intended for and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means; and
(10) do any lawful act with respect to the subject and all property related to the subject.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4034 Real property
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:
(1) demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
(2) sell; exchange; convey, with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
(3) pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property that exists or is asserted;
(5) manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
(A) insuring against liability or casualty or other loss;
(B) obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
(C) paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and
(D) purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
(6) use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
(7) participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
(A) selling or otherwise disposing of them;
(B) exercising or selling an option, right of conversion, or similar right with respect to them; and
(C) exercising any voting rights in person or by proxy;
(8) change the form of title of an interest in or right incident to real property;
(9) dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest; and
(10) relinquish any and all of the principal’s rights of homestead under 27 V.S.A. § 105 and elective share under section 323 of this title.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4035 Tangible personal property
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:
(1) demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
(2) sell, exchange, or convey, with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or otherwise dispose of tangible personal property or an interest in tangible personal property;
(3) grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) release, assign, satisfy, or enforce by litigation or otherwise a security interest, lien, or other claim on behalf of the principal with respect to tangible personal property or an interest in tangible personal property;
(5) manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
(A) insuring against liability or casualty or other loss;
(B) obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
(C) paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;
(D) moving the property from place to place;
(E) storing the property for hire or on a gratuitous bailment; and
(F) using and making repairs, alterations, or improvements to the property; and
(6) change the form of title of an interest in tangible personal property.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4036 Stocks and bonds
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:
(1) buy, sell, and exchange stocks and bonds;
(2) establish, continue, modify, or terminate an account with respect to stocks and bonds;
(3) pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;
(4) receive certificates and other evidences of ownership with respect to stocks and bonds; and
(5) exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4037 Commodities and options
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:
(1) buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and
(2) establish, continue, modify, and terminate option accounts.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4038 Banks and other financial institutions
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:
(1) continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;
(2) establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;
(3) contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
(4) withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
(5) receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;
(6) enter a safe deposit box or vault and withdraw or add to the contents;
(7) borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(8) make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order; transfer money; receive the cash or other proceeds of those transactions; and accept a draft drawn by a person upon the principal and pay it when due;
(9) receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;
(10) apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
(11) consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4039 Operation of entity or business
Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:
(1) operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
(2) perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;
(3) enforce the terms of an ownership agreement;
(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;
(5) exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;
(6) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;
(7) with respect to an entity or business owned solely by the principal:
(A) continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
(B) determine:
(i) the location of its operation;
(ii) the nature and extent of its business;
(iii) the methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;
(iv) the amount and types of insurance carried; and
(v) the mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;
(C) change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
(D) demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
(8) put additional capital into an entity or business in which the principal has an interest;
(9) join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;
(10) sell or liquidate all or part of an entity or business;
(11) establish the value of an entity or business under a buy-out agreement to which the principal is a party;
(12) prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments; and
(13) pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4040 Insurance and annuities
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:
(1) continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal that insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
(2) procure new, different, and additional contracts of insurance and annuities for the principal and the principal’s spouse, children, and other dependents and select the amount, type of insurance or annuity, and mode of payment;
(3) pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;
(4) apply for and receive a loan secured by a contract of insurance or annuity;
(5) surrender and receive the cash surrender value on a contract of insurance or annuity;
(6) exercise an election;
(7) exercise investment powers available under a contract of insurance or annuity;
(8) change the manner of paying premiums on a contract of insurance or annuity;
(9) change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;
(10) apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
(11) collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;
(12) select the form and timing of the payment of proceeds from a contract of insurance or annuity; and
(13) pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4041 Estates, trusts, and other beneficial interests
(a) As used in this section, “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be entitled to a share or payment.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to:
(1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;
(2) demand or obtain money or another thing of value to which the principal is, may become, or claims to be entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;
(3) exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;
(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;
(5) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;
(6) conserve, invest, disburse, or use anything received for an authorized purpose; and
(7) transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4042 Claims and litigation
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:
(1) assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;
(2) bring an action to determine adverse claims or intervene or otherwise participate in litigation;
(3) seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
(4) make or accept a tender, offer of judgment, or admission of facts; submit a controversy on an agreed statement of facts; consent to examination; and bind the principal in litigation;
(5) submit to alternative dispute resolution, settle, and propose or accept a compromise;
(6) waive the issuance and service of process upon the principal; accept service of process; appear for the principal; designate persons upon which process directed to the principal may be served; execute and file or deliver stipulations on the principal’s behalf; verify pleadings; seek appellate review; procure and give surety and indemnity bonds; contract and pay for the preparation and printing of records and briefs; and receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;
(7) act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee that affects an interest of the principal in property or other thing of value;
(8) pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and
(9) receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4043 Personal and family maintenance
(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:
(1) perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, and the following individuals, whether living when the power of attorney is executed or later born:
(A) other individuals legally entitled to be supported by the principal; and
(B) the individuals whom the principal has customarily supported or indicated the intent to support;
(2) make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
(3) provide living quarters for the individuals described in subdivision (1) of this subsection by:
(A) purchase, lease, or other contract; or
(B) paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;
(4) provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for the individuals described in subdivision (1) of this subsection;
(5) pay expenses for necessary health care and custodial care on behalf of the individuals described in subdivision (1) of this subsection;
(6) act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act; Sections 1171–1179 of the Social Security Act; 42 U.S.C. § 1320d, as amended; and applicable regulations in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this State to consent to health care on behalf of the principal;
(7) continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in subdivision (1) of this subsection;
(8) maintain credit and debit accounts for the convenience of the individuals described in subdivision (1) of this subsection and open new accounts; and
(9) continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.
(b) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4044 Benefits from governmental programs or civil or military service
(a) As used in this section, “benefits from governmental programs or civil or military service” means any benefit, program, or assistance provided under a statute or regulation, including Social Security, Medicare, Medicaid, and the Department of Veterans Affairs.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:
(1) execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in subdivision 4043(a)(1) of this title and for shipment of their household effects;
(2) take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;
(3) enroll in, apply for, select, reject, change, amend, or discontinue, on the principal’s behalf, a benefit or program;
(4) prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or regulation;
(5) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or regulation; and
(6) receive the financial proceeds of a claim described in subdivision (4) of this subsection and conserve, invest, disburse, or use for a lawful purpose anything so received.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4045 Retirement plans
(a) As used in this section, “retirement plan” means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:
(1) an individual retirement account under Internal Revenue Code § 408, 26 U.S.C. § 408, as amended;
(2) a Roth individual retirement account under Internal Revenue Code § 408A, 26 U.S.C. § 408A, as amended;
(3) a deemed individual retirement account under Internal Revenue Code § 408(q), 26 U.S.C. § 408(q), as amended;
(4) an annuity or mutual fund custodial account under Internal Revenue Code § 403(b), 26 U.S.C. § 403(b), as amended;
(5) a pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code § 401(a), 26 U.S.C. § 401(a), as amended;
(6) a plan under Internal Revenue Code § 457(b), 26 U.S.C. § 457(b), as amended; and
(7) a nonqualified deferred compensation plan under Internal Revenue Code § 409A, 26 U.S.C. § 409A, as amended.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:
(1) select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
(2) make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;
(3) establish a retirement plan in the principal’s name;
(4) make contributions to a retirement plan;
(5) exercise investment powers available under a retirement plan; and
(6) borrow from, sell assets to, or purchase assets from a retirement plan.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4046 Taxes
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:
(1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns; claims for refunds; requests for extension of time; petitions regarding tax matters; and any other tax-related documents, including receipts; offers; waivers; consents, including consents and agreements under Internal Revenue Code § 2032A, 26 U.S.C. § 2032A, as amended; closing agreements; and any power of attorney required by the Internal Revenue Service or other taxing authority, including an internal revenue service form 2848 in favor of any third party with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;
(2) pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
(3) exercise any election available to the principal under federal, state, local, or foreign tax law; and
(4) act for the principal in all tax matters for all periods before the Internal Revenue Service, or other taxing authority.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4047 Gifts
(a) For purposes of this section, “gift” includes a gift for the benefit of a person, including a gift to a trust, an account under chapter 115 of this title (Vermont Uniform Transfers to Minors Act), and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code § 529, 26 U.S.C. § 529, as amended.
(b) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent or, if unknown, as the agent determines is consistent with the principal’s best interests based on all relevant factors, including:
(1) evidence of the principal’s intent;
(2) the principal’s personal history of making or joining in the making of lifetime gifts;
(3) the principal’s estate plan;
(4) the principal’s foreseeable obligations and maintenance needs and the impact of the proposed gift on the principal’s housing options, access to care and services, and general welfare;
(5) the income, gift, estate, or inheritance tax consequences of the transaction; and
(6) whether the proposed gift creates a foreseeable risk that the principal will be deprived of sufficient assets to cover the principal’s needs during any period of Medicaid ineligibility that would result from the proposed gift.
(c) [Repealed.]
(Added 2023, No. 60, § 1, eff. July 1, 2023; amended 2023, No. 161 (Adj. Sess.), § 15, eff. June 6, 2024.)
Subchapter 3 Statutory Forms
§ 4051 Statutory form power of attorney
A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by this chapter.
VERMONT STATUTORY FORM POWER OF ATTORNEY IMPORTANT INFORMATION
This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Vermont Uniform Power of Attorney Act, 14 V.S.A. chapter 127.
This power of attorney does not authorize the agent to make health-care decisions for you.
You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you. Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.
This form does not revoke powers of attorney previously executed by you unless you initial the introductory paragraph under DESIGNATION OF AGENT that all previous powers of attorney are revoked.
This form provides for designation of one agent. If you wish to name more than one agent, you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions.
If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.
This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.
If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.
DESIGNATION OF AGENT
I _______________________________________ (Name of Principal) ( ) revoke all previous powers of attorney and name the following person as my agent:
Name of Agent: _______________________________________
Agent’s Address: _______________________________________________________________________
Agent’s Telephone Number: _______________________________________
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name as my successor agent:
Name of Successor Agent: _______________________________________
Successor Agent’s Address: _______________________________________________________________________
Successor Agent’s Telephone Number: _______________________________________
If my agent is unable or unwilling to act for me, I name as my second successor agent:
Name of Second Successor Agent: _______________________________________
Second Successor Agent’s Address: _______________________________________________________________________
Second Successor Agent’s Telephone Number: _______________________________________
GRANT OF GENERAL AUTHORITY
I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Vermont Uniform Power of Attorney Act, 14 V.S.A. chapter 127, together with the incidental powers enumerated in section 4033 of that chapter.
(STRIKE THROUGH each subject you DO NOT want to include in the agent’s general authority.)
Real Property
Tangible Personal Property
Stocks and Bonds
Commodities and Options
Banks and Other Financial Institutions
Operation of Entity or Business
Insurance and Annuities
Estates, Trusts, and Other Beneficial Interests
Claims and Litigation
Personal and Family Maintenance
Benefits from Governmental Programs or Civil or Military Service
Retirement Plans
Taxes
GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:
(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)
( ) An agent who is not an ancestor, spouse, or descendant may exercise authority under this power of attorney to create in the agent or in an individual to whom the agent owes a legal obligation of support an interest in my property whether by gift, rights of survivorship, beneficiary designation, disclaimer, or otherwise
( ) Create, amend, revoke, or terminate an inter vivos, family, living, irrevocable, or revocable trust
( ) Consent to the modification or termination of a noncharitable irrevocable trust under 14A V.S.A. § 411
( ) Make a gift, subject to the limitations of 14 V.S.A. § 4047 (gifts) and any special instructions in this power of attorney
( ) Create, amend, or change rights of survivorship
( ) Create, amend, or change a beneficiary designation
( ) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
( ) Exercise fiduciary powers that the principal has authority to delegate
( ) Authorize another person to exercise the authority granted under this power of attorney
( ) Disclaim or refuse an interest in property, including a power of appointment
( ) Exercise authority with respect to elective share under 14 V.S.A. § 319
( ) Exercise waiver rights under 14 V.S.A. § 323
( ) Exercise authority over the content and catalogue of electronic communications and digital assets under 14 V.S.A. chapter 125 (Vermont Revised Uniform Fiduciary Access to Digital Assets Act)
( ) Exercise authority with respect to intellectual property, including, without limitation, copyrights, contracts for payment of royalties, and trademarks
( ) Convey, or revoke or revise a grantee designation, by enhanced life estate deed pursuant to 27 V.S.A. chapter 6 or under common law.
LIMITATION ON AGENT’S AUTHORITY
An agent who is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.
WHEN POWER OF ATTORNEY EFFECTIVE
This power of attorney becomes effective when executed unless the principal has initialed one of the following:
( ) This power of attorney is effective only upon my later incapacity. OR
( ) This power of attorney is effective only upon my later incapacity or unavailability. OR
( ) I direct that this power of attorney shall become effective when one or more of the following occurs:
EFFECTIVE DATE
This power of attorney is effective immediately unless I have indicated or stated otherwise in the section above entitled When Power of Attorney Effective or in the section below entitled Special Instructions.
SPECIAL INSTRUCTIONS (OPTIONAL)
You may give special instructions on the following lines:
NOMINATION OF GUARDIAN (OPTIONAL)
If it becomes necessary for a court to appoint a guardian of my estate or a guardian of my person, I nominate the following person(s) for appointment:
Name of Nominee for [conservator or guardian] of my estate: _________________________________________
Nominee’s Address: _________________________________________
Nominee’s Telephone Number: _________________________________________
Name of Nominee for guardian of my person: _________________________________________
Nominee’s Address: _________________________________________
Nominee’s Telephone Number: _________________________________________
RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid. Unless expressly stated otherwise, this power of attorney is durable and shall remain valid if I become incapacitated or unavailable.
SIGNATURE AND ACKNOWLEDGMENT
Your Name Printed: _________________________________________
Your Address: _________________________________________
Your Telephone Number: _________________________________________
State of: _________________________________________
County of: _________________________________________
This document was acknowledged before me on: (Date)_________________________________________
by . (Name of Principal)_________________________________________
(Seal, if any): _________________________________________
Signature of Notary: _________________________________________
My commission expires: _________________________________________
IMPORTANT INFORMATION FOR AGENT
Agent’s Duties
When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:
(1) do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interests;
(2) act in good faith;
(3) do nothing beyond the authority granted in this power of attorney; and
(4) disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner: (Principal’s Name) by (Your Signature) as Agent.
Unless the Special Instructions in this power of attorney state otherwise, you must also:
(1) act loyally for the principal’s benefit;
(2) avoid conflicts that would impair your ability to act in the principal’s best interest;
(3) act with care, competence, and diligence;
(4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(5) cooperate with any person that has authority to make health-care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interests; and
(6) attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interests.
Termination of Agent’s Authority
You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:
(1) death of the principal;
(2) the principal’s revocation of the power of attorney or your authority;
(3) the occurrence of a termination event stated in the power of attorney;
(4) the purpose of the power of attorney is fully accomplished; or
(5) if you are married to the principal, a legal action is filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.
Liability of Agent
The meaning of the authority granted to you is defined in the Vermont Uniform Power of Attorney Act, 14 V.S.A. chapter 127. If you violate the Vermont Uniform Power of Attorney Act, or act outside the authority granted, you may be liable for any damages caused by your violation. In addition to civil liability, failure to comply with your duties and authority granted under this document could subject you to criminal prosecution.
If there is anything about this document or your duties that you do not understand, you should seek legal advice.
(Added 2023, No. 60, § 1, eff. July 1, 2023; amended 2023, No. 161 (Adj. Sess.), § 16, eff. June 6, 2024; 2025, No. 64, § 14, eff. June 12, 2025.)
§ 4052 Statutory short form power of attorney for real estate transactions
(a) A document substantially in the following form may be used to create a statutory form power of attorney for a real estate transaction that has the meaning and effect prescribed by this chapter. Nothing in this section shall prohibit a principal from using this form to grant other powers to an agent with respect to real property consistent with section 4034 of this title.
VERMONT STATUTORY FORM POWER OF ATTORNEY IMPORTANT INFORMATION
This power of attorney authorizes another person (your agent) to take actions for you (the principal) in connection with a real estate transaction (sale, purchase, mortgage, gift, or other authorized real estate transaction). Your agent will be able to make decisions and act with respect to a specific parcel of land whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Vermont Uniform Power of Attorney Act, 14 V.S.A. chapter 127.
DESIGNATION OF AGENT
I/we _______________________________________ and _______________________________________
(Name(s) of Principal) appoint the following person as my (our) agent:
Name of Agent: _________________________________________
Name of Successor Agent: _________________________________________
Address of Property that is the subject of this power of attorney
(Street): , (Municipality)_________________________________________
_______________________________________________________________________ , Vermont.
Transaction for which the power of attorney is given:
[ ] Sale
[ ] Purchase or Acquisition
[ ] Finance and/or Mortgage
[ ] Gift
[ ] Other _______________________________________________________________________
GRANT OF AUTHORITY
I/we grant my (our) agent and any successor agent authority named in this power of attorney to act for me/us with respect to a real estate transaction involving the property with the address stated above, including, but not limited to, the powers described in 14 V.S.A. § 4034(2), (3), and (4) as provided in the Vermont Uniform Power of Attorney Act, 14 V.S.A. chapter 127, together with the incidental powers enumerated in section 4033 of that chapter.
POWER TO DELEGATE
[ ] If this box is checked, each agent appointed in this power of attorney may delegate the authority to act to another person. Any delegation shall be in writing and executed in the same manner as this power of attorney.
TERM
This power of attorney commences when fully executed and continues until the real estate transaction for which it was given is complete.
SELF DEALING
[ ] If this box is checked, the agent named in this power of attorney may convey the subject real estate with or without consideration to the agent, individually, in trust, or to one or more persons with the agent.
CHOICE OF LAW
This power of attorney and the effect hereof shall be determined by the application of Vermont law and the Vermont Uniform Power of Attorney Act.
SIGNATURE AND ACKNOWLEDGMENT
_______________________________________________________________________ Your Name Printed
_______________________________________________________________________ Your Address
_______________________________________________________________________ Your Telephone Number_______________________________________________________________________
State of _________________________________________
County of _________________________________________
This document was acknowledged before me on (Date) _________________________________________
by _______________________________________________________________________ (Name of Principal)
_________________________________________ (Seal, if any)
Signature of Notary _________________________________________
My Commission expires: _________________________________________
(b) A power of attorney in the form above confers on the agent the powers provided in subdivisions 4034(2), (3), and (4) of this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023; amended 2023, No. 161 (Adj. Sess.), § 17, eff. June 6, 2024.)
§ 4053 Agent’s certification
The following optional form may be used by an agent to certify facts concerning a power of attorney.
AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY
State of_______________________________________
[County] of _______________________________________ ]
I, (Name of Agent), _______________________________________ certify under penalty of perjury that (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated__ .
I further certify that to my knowledge:
(1) the Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;
(2) if the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;
(3) if I was named as a successor agent, the prior agent is no longer able or willing to serve; and
(4) (Insert other relevant statements below)
----------------- _________________________________________ ----------------- _________________________________________ ----------------- _________________________________________ ----------------- _________________________________________ ----------------- _________________________________________ SIGNATURE AND ACKNOWLEDGMENT ----------------- _________________________________________
Agent’s Name Printed _______________________________________________________________________
Agent’s Address _______________________________________________________________________
Agent’s Telephone Number _______________________________________________________________________
This document was acknowledged before me on (Date) _________________________________________ by _______________________________________________________________________ (Name of Agent)
_______________________________________________________________________Signature of Notary (Seal, if any)
My commission expires: _________________________________________
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
Subchapter 4 Miscellaneous Provisions
§ 4061 Uniformity of application and construction
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4062 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 subsection 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in subsection 103(b) of that act, 15 U.S.C. § 7003(b).
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
§ 4063 Effect on existing powers of attorney
Except as otherwise provided in this chapter, on July 1, 2023:
(1) this chapter applies to a power of attorney created before, on, or after July 1, 2023;
(2) this chapter applies to a judicial proceeding concerning a power of attorney commenced on or after July 1, 2023;
(3) this chapter applies to a judicial proceeding concerning a power of attorney commenced before July 1, 2023 unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and
(4) an act done before July 1, 2023 is not affected by this chapter.
(Added 2023, No. 60, § 1, eff. July 1, 2023.)
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