Wills and Trusts
What Is a Will?
Does Everyone Need a Will?
What Happens If I Die Without a Will?
Does My Will Cover the Distribution of All My Assets?
Can Somebody Contest My Will?
Do I Need a Lawyer to Draft My Will?
How Can I Revoke or Change My Will?
What Does it Mean to Go Through Probate?
What Is a Living Trust?
Should Everybody Have a Living Trust?
Where Can I Get More Information?
What Is a Will?
A will is a written document which states how you want your belongings, money, and property to be distributed after your death.
You must be over age 18 and must be competent when you execute it. It must be signed in the presence of two witnesses.
In your will, you can name the person you want to carry out the distribution of your assets. This person is called your
"executor." A will can also provide for the guardianship of your minor children. A will must go through Probate Court before
any distributions can be made.
Does Everyone Need a Will?
No, but having a will is a good idea. A will lets you decide how you want your assets to be distributed. If you die without
a will, your assets will be distributed to your family based on standard rules for everyone in Vermont.
What Happens if I Die Without a Will?
It depends on whether or not you are married, whether or not you have children, and who your next of kin are. In general, your
surviving spouse has a right to a homestead allowance of $75,000. If your estate has just an automobile, snowmobile, or
all-terrain vehicle, title will pass automatically to your surviving spouse.
Examples of how property is distributed without a will
| If you have two or more children | Your surviving spouse will get at least one-third of your personal property,
and one-third of your real property. |
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| If you have only one child | Your surviving spouse will get one-third of your personal property and one-half of
your real property. |
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| If you have no children | Your surviving spouse will get $25,000 and half of the remainder of your estate.
The other half will go to your next of kin. |
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| If you do not have a surviving spouse | Your property will go to your children. If one of your children is dead,
his or her share will go to his or her children. If all of your children are dead, then your property will go equally to your
grandchildren. |
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| 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 get his or her share.
- Your nieces and nephews.
- Your other relatives.
- If you leave no heirs or next of kin, your property will go to the State of Vermont.
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Does My Will Cover the Distribution of All My Assets?
Not necessarily. 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 question about how your property
would be distributed upon your death.
Examples of how property can be distributed without going through probate
| 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. |
Can Somebody Contest My Will?
Yes. Anybody can file a claim against your estate. Just because someone has filed a claim, it does not necessarily mean that he
or she will win. A properly-drafted will can reduce the likelihood of a successful challenge.
Do I Need a Lawyer to Draft My Will?
You do not need a lawyer to draft your will, but it is advisable 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.
How Can I Revoke or Change My Will?
You can revoke your will by 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 Does it Mean to Go Through Probate?
Going through probate simply 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.
What Is a Living Trust?
A trust is a legal document in which you give control of your assets to a trustee to manage those assets for your benefit during
your lifetime, and then to distribute them after your death. A trust can be expensive to set up and maintain. You need to
remember to transfer your assets into it. The transfer of assets into the trust might have adverse consequences if you need
long-term care Medicaid. For more information about living trusts, visit the
National Consumer Law Center website.
Should Everybody Have a Living Trust?
No. A living trust may be a good idea for some people, but not for other people. You should consult with an attorney or financial
planner about whether or not a living trust is right for you. Factors to consider in whether you need a living trust include
- the value of your assets,
- the cost of setting up the trust and maintaining the trust,
- your wish to keep things private
and to avoid Probate Court.
Where Can I Get More Information?
The Senior Citizens Law Project maintains lists of lawyers available to draft simple wills for $50 for low income Seniors and people
with a disability. Call Vermont Legal Aid at (800) 889-2047 to see if you
are eligible for this referral. If your income or resources are above the limit for a will at a reduced fee, the Vermont Bar
Association maintains lists of lawyers who do various types of work. You can call their Vermont Lawyer Referral Service at
(800)639-7036.
See the Vermont Judicary website
for more information about Probate Court.
Vermont Law Help, 2008.
This is a website about Vermont law. We give this information
as a public service. It is not legal advice. We are not acting as your
lawyer.
Always consult a lawyer, if you can, before taking legal action.
