The Vermont Statutes Online

Title 14: Decedents Estates and Fiduciary Relations

Chapter 071: Actions by and Against Executors and Administrators

• Subchapter 001: 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 Repealed. 1971, No. 185 (Adj.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. 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. 2017, No. 195 (Adj. Sess.), § 7.

• Subchapter 002: 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 003: 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.)