The Vermont Statutes Online

Title 14: Decedents Estates and Fiduciary Relations

Chapter 077: 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. 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. 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. 2017, No. 195 (Adj. Sess.), § 10.