Wills and Trusts

A will is a written document which states how you want your belongings, money, and property to be distributed (who they will be given to) after your death. You must be over age 18 and must be competent when you sign ("execute") it. It must be signed in the presence of two witnesses.

In your will, you can name the person you want to be in charge of following your wishes about who gets your assets. This person is called your "executor." A will can also provide for the guardianship of your minor children. After your death, your will must go through Probate Court before any distributions can be made.

Even if you think you don't need a will, having a will is a good idea. A will lets you decide how your assets will be distributed. If you die without a will, your assets will be distributed to your family based on standard rules for everyone in Vermont (see below).

What if I Die Without a Will?

What happens depends on whether or not you are married, whether or not you have children, and who your next of kin are. The rules changed in 2009, so some information you read may be out of date.

Examples of how property is distributed without a will:

If you have a surviving spouse and had no children:	If your spouse survives, and you have no living descendants, your spouse will inherit all your property.
If you have a surviving spouse and had children:	If all your descendants are also descendants of your spouse (that is, all your children are also your spouse's children), your spouse will inherit all your property. If you have descendants who are not descendants of your spouse (such as children or grandchildren from a previous marriage), your spouse will only get half your property. The rest will be divided among your descendants. There is one exception: if your only significant property is a boat, snowmobile, or all-terrain vehicle, your surviving spouse will become the owner.
If you do not have a surviving spouse and had children:	Your property will go to your children. If one of your children is dead, his or her share will be split among his or her children.
If you do not have a spouse or children:	Your property will go to your next of kin in the following order: Your parents Your brothers and sisters, and if any brother or sister is dead, the children of that person will divide his or her share Your grandparents Your nieces and nephews Your other relatives If you leave no living relatives, your property will go to the town where you live

Distribution of Assets

A will does not necessarily cover the distribution of all your assets. A will only covers the property that goes into your estate at the time of your death. There are ways to own property that do not go into your estate.

You should consult with an attorney if you have any questions about how your property would be distributed upon your death.

Examples of how property can be distributed without going through Probate Court:

If you own property as joint tenants or have joint accounts:	It will go to the other joint tenants or joint account holders.
If you own property as tenants by the entirety:	It will go to your spouse.
If you have money or assets in a "pay on death account":	It will go to the person(s) you list as the beneficiary of the account.
If you have a life estate:	It will go to the person(s) who own the remainder interest.

Do I Need a Lawyer?

You do not need a lawyer to draft your will, but it is a good idea to have a lawyer do it. While there are many forms available on the internet, they are not all valid or good. They are not all written with Vermont laws in mind.

Since your will becomes final at your death, you will not have a chance to "fix" it or to change it if you have made a mistake. A lawyer can draft the will taking into account your unique needs. A lawyer will make suggestions about what to include in your will.

Anybody can file a claim against your estate. Just because someone has filed a claim does not necessarily mean that he or she will win. A properly-drafted will can reduce the likelihood of a successful challenge.

Revoking or Changing a Will

You can revoke your will by creating ("executing") a new will, by signing a document revoking it in the presence of two witnesses, or by physically destroying the will with the intention of revoking it.

You can change your will by executing a new will, or by executing a "codicil," which is a document which changes your will. The codicil must be signed in the presence of two witnesses.

What is "Going through Probate"?

Going through probate means to submit a will to the Probate Court, and to have the Probate Court oversee the payment of debts and distribution of property according to the terms of the will.

If you have died without a will, going through probate means having the Probate Court oversee the payment of debts and the distribution of property according to the laws of the State of Vermont. Contrary to myth, it is not always expensive or time-consuming.

More Information about Wills

Call Vermont Legal Aid at 1-800-889-2047 if you have additional questions. Vermont Legal Aid does not draft wills, but may be able to answer basic questions. You can also find a private attorney to draft your will by contacting the Vermont Bar Association's Lawyer Referral Service at 1-800-639-7036.

See the Vermont Judiciary website for more information about Probate Court.

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