The Vermont Statutes Online

Title 14: Decedents Estates and Fiduciary Relations

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.)