Vt. R. Prob. P. 5

As amended through April 1, 2024

Rule 5 - Service and Filing of Pleadings and Other Documents

(a)Service: when required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original petition unless the court otherwise orders, every document relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, inventory and similar document shall be served upon each of the parties who have appeared. No service need be made on parties who have not appeared, except that:

(1) Service shall be made pursuant to this rule on the person, specified in Rule 5.1;

(2) Service shall be made on an executor or administrator pursuant to this rule in a proceeding involving a decedent's estate;

(3) Service shall be made on a trustee pursuant to this rule in a proceeding involving a trust;

(4) Service shall be made on a guardian and, unless otherwise ordered by the court, on a ward pursuant to this rule in a proceeding involving a guardian or proposed guardian of the person or estate;

(5) Service shall be made on a person who is representing the interests of another pursuant to Rule 18; and

(6) Service shall be made on the Veterans Administration pursuant to this rule when required by law.

(b) Same: how made. Unless a statute or rule requires service by the court, a party must at or before the time of filing a document serve a copy on the other parties in accordance with this rule.

(1) Methods of Service of Documents Defined. Within this rule, the following definitions apply.

(A) Using the Electronic Filing System. Using the electronic filing system means using the Judiciary's electronic filing system to transmit documents by choosing File and Serve or Serve and selecting the party's contact from the Public List to serve other registered users with public service contacts as required or permitted by the 2020 Vermont Rules for Electronic Filing. Service is complete upon transmission by the electronic filing system to the other party 2 unless the sender learns that it did not reach the person to be served.

(B)Delivery. Delivery means: handing it to the attorney or to the party; or leaving at the attorney's or party's office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

(C)Mailing. Mailing means: sending by ordinary first-class mail or by commercial carrier; Service by mail or by commercial carrier is complete upon mailing or delivery to the carrier.

(D) Email. Email means sending an attachment to the email address or addresses of the person to be served with the case title and number in the subject line. Service by email is complete upon sending, provided that such service is not effective if the party making service learns that it did not reach the person to be served.

(E) Leaving with the Register. Leaving a copy with the Register means filing the document with the Register using a method allowed by subdivision (e) of this rule along with a statement that the filer is prevented by rule or court order from contacting the party or knowing the party's contact information.

(2) Service requirements. The methods of service to be used are as follows:

(A) Electronic Filers. Service of electronic filings between electronic files with service contacts must be made by using the electronic filing system in accordance with 2020 V.R.E.F. 11(d)(1), or by another method agreed on as provided in 2020 V.R.E.F. 11(d)(2).

(B) Non-electronic filers. (Self-represented party or other participant who is not required and has not elected to electronically file in the case).

(i) Service by or on non-efilers may be made by delivery or mailing.

(ii) Service by or on non-efilers may be made by email if (a) a non-efiler has filed a notice of appearance that provides an email address and consent to receive service by email at that address, (b) the parties agreed to service by email in a signed writing filed with the court, or (c) no valid physical or postal address is known and there is no consent to service by email, but the non-efiler has provided an email address on a court filing;

(iii) If the filer is prevented by rule or court order from contacting the other party or receiving the other party's contact information, the filer may serve by leaving with the register.

(C) Service of nonelectronic filings between efilers and service on efilers without service contacts may be made by delivery, by mailing, or by email or other method agreed to by the parties in a signed writing filed with the court.

(D) Service of Discovery Documents.

(i) An efiler must serve discovery requests or responses on an efiler using the service function of the electronic filing system unless the parties agree on an alternative method of service.

(ii) Service by or on non-efilers may be made by mailing, by delivery, or by email or other method if the parties agree.

(c) Same: numerous parties. In any proceeding in which there are unusually large numbers of parties with similar interests, the court, upon motion or of its own initiative, may order that service of the pleadings of those parties and replies thereto need not be made as between those parties and that the filing of any such pleading and service thereof upon the petitioner constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(d) Filing. All documents after the petition required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, except that all requests for discovery under V.R.C.P. 26-34 and 36 and answers and responses thereto shall not be filed unless on order of the court or for use in the proceeding. If a paper is not to be filed, the party serving it shall file instead a certificate that each deposition has been completed and sealed pursuant to V.R.C.P. 30(f) or that each request, interrogatory, answer or response has been served in accordance with this rule.

(e)Filing with the court defined.

(1)In General. The filing of documents with the court as required by these rules shall be made by filing them with the register except that a judge may agree to accept a document for filing and must then note the filing date on the document and promptly send it to the register.

(2)Filing by Electronic Filers. Any attorney, self-represented party, or other participant in the proceeding who is required or has elected to electronically file must use the court's electronic filing system to file documents pursuant to the 2020 Vermont Rules for Electronic Filing and subject to the exceptions set forth in those rules.

(3) Filing by Non-Electronic Filers. Self-represented parties and other participants in the proceeding, who are not required and have not elected to electronically file, and attorneys who are permitted to use a method other than electronic filing may file with the court by delivery, mailing, commercial carrier, or email addressed to the register.

(4)Standards for Email Filing. Any document filed by email must conform to the following:

(A) The filing must be sent to the email account for the court where the filing is made.

(B) The filing must be sent as an attachment in PDF format or other readily accessible document type.

(C) The subject line must identify the case number and the court where the filing is made.

(D) A signature block containing the filer's typed-in name preceded by "/s/," or an electronic facsimile of the filer's signature, a scanned copy of it, or another form of electronic signature as defined in 9 V.S.A. § 271(9), will serve as a party's signature on pleadings, motions, and other documents that must be filed with a signature.

(5)Filing Date.

(A) The date of filing by mailing, delivery, or commercial carrier is the date received at the register's office if received before the office is scheduled to close.

(B) The date of email filing is the date submitted if submitted prior to midnight on that date, unless the party making the filing learns that the attempted filing did not reach the court. An email filing may be submitted on any day, including holidays and weekends, and at any time.

(C) The date of filing by delivery to a judge is the date received as noted by the judge.

(D) The date and time of electronic filing is the date and time of initial submission if the filing is accepted initially or after timely correction under V.R.E.F. 5(c) and (d). An electronic filing may be submitted on any day, including holidays and weekends, and at any time.

(6)Filing by Inmate. A document filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement accompanying the document stating the date the document was deposited in the institution's internal mailing system. The notarized statement establishes a presumption that the document was deposited in the institution's internal mailing system on the date shown in the statement. The presumption may be rebutted by documentary or other evidence. Nothing in this rule precludes other evidence of timely filing such as a postmark or an official date stamp showing the filing date of the document. An inmate may file and serve documents by email, as set forth in subdivisions (b) and (e) of this rule.

(7)Denial for Lack of Form Prohibited. Unless otherwise provided in the 2020 Vermont Rules for Electronic Filing, the clerk shall not refuse to accept for filing any document presented for that purpose solely because it is not presented in proper form as required by these rules.

(8)Paper Documents. The documents specified by V.R.P.P. 78 must be filed with the court on paper, and the court will not consider a petition or motion that references the document until the paper original or certified copy of the document has been filed with the court.

(f)Certificate of service. Except as provided in any applicable provisions of the 2020 Vermont Rules for Electronic Filing, every document filed with the court after the original petition, and required by this rule to be served upon a party, must be accompanied by a certificate of service. The certificate may be incorporated into the final page of the document being served, or may be on a separate form. It need not be in any special format so long as it contains all the required information. Multiple documents may be filed with one celiificate of service. The certificate must meet the following requirements:

(1)Signing. The certificate must be signed by the party's lawyer or an authorized employee of the lawyer, or by a self-represented pmiy, subject to the obligations of Rule 11.

(2)Contents. The certificate must:

(A) certify that the document has been served upon every other party to the case;

(B) state the manner of service (mail. personal delivery, or other service authorized by this rule);

(C) state the name and address of each person or entity served; and

(D) state the date of the mailing or other means of delivery.

(3)Noncompliance. If a document that requires a celiificate of service is filed without one, the judge may issue an order:

(A) suspending the running of the time for response by the other pmiy or parties until the filing of a proper certificate of service,

(B) declining to act on the filing until a proper certificate is filed, or

(C) ordering that the filing will be deemed withdrawn if no certificate is filed by a date certain. The lack of a certificate of service shall not be a basis for the register or the judge to refuse to accept the filing, or to return the document to the filer.

(g) Form of documents. Unless otherwise specified in the 2020 Vermont Rules for Electronic Filing, all paper documents shall be eight and one-half by eleven inches in size, endorsed with the name and docket number of the proceeding, the court and probate district where pending, the name of the paper, and the name and address of the person or attorney filing it.

(h) Separation of Nonpublic Data. The filer must separate nonpublic data as required by Vermont Rule for Public Access to Court Records 7.

(i)Definitions. For purposes of filing and service, the following terms have the same meaning as provided in Rule 2 of the 2020 Vermont Rules for Electronic Filing:

(1) Document means a related and paginated grouping of information items that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(2) Electronic Filer or "efiler" means an attorney, who is required to electronically file, and any other person who is permitted or required to file electronically in a case.

(3) Electronic Filing or "efiling" means the process of transmitting a document from an electronic filer, using the Judiciary's electronic filing system, to the Judiciary's electronic case file.

(4) Electronic Filing System or "efiling system" means the Judiciary's Internet-accessible efiling and service system.

(5) Nonelectronic Filing means any method of filing a paper document with the court.

(6) Service Contact means a person for whom an email address and other identifying information has been entered into the efiling system as a designated recipient of service on case filings from other parties through the efiling system.

(7) Public Contact. A Public Contact is a Service Contact listed on the Public List for purposes of electronic service that other electronic filers must use for service.

Vt. R. Prob. P. 5

Amended May 14, 1986, eff. 7/1/1986; Oct. 25, 2000, eff. 1/1/2001; amended June 23, 2011, eff. 7/15/2011; Dec. 21, 2011, eff. 2/20/2012; Dec. 11, 2014, eff. 2/13/2015; Dec. 11, 2014, eff. 2/13/2015; July 14, 2017, eff. 9/18/2017; amended Nov. 5, 2018, effective 1/7/2019; amended Dec. 10, 2019, effective 3/2/2020; amended Aug. 9, 2022, eff. 9/6/2022; amended July 10, 2023, eff. 10/2/2023.

Reporter's Notes-2023 Amendment

Rule 5(e) is amended to add paragraph (8) regarding paper documents. New paragraph 5(e)(8) specifies that paper documents must be filed in certain proceedings in the Probate Division. Although the document may be filed electronically and made part of the electronic case file, the original paper document or a certified copy of the document must also be submitted to the court before the court will consider a petition or motion referencing the document to ensure the authenticity of the document. The filers submitted the paper document should indicate to the court that it is being submitted pursuant to V.R.P.P. 78 and should be retained until proceeding is final. V.R.P.P. 78(c)(2).

Reporter's Notes-2020 Amendment

This rule was amended, at the same time as V.R.C.P. 5, in anticipation of electronic filing in the probate division using eCabinet, the experimental efiling system. The system was never implemented in the probate division and never will be. The new case management system will, however, be used in the probate division when it is rolled out. The intent is to repeal sections of the rule on electronic filing for ecabinet and under the 2010 Vermont Rules of Electronic Filing and make service rules subject to the 2020 Vermont Rules of Electronic Filing as it is rolled out, as well as to the new version of the Vermont Rules for Public Access to Court Records. The specifics of the amendments are identical or very similar to the 2020 amendments of V.R.C.P. 5 and are described in the Reporter's Notes to those amendments. Those notes should be consulted to determine the intent of the drafting for these amendments.

Reporter's Notes-2019 Amendment

Rule 5(f) is redesignated as Rule 5(f)(1) and Rule 5(f)(2) is added to provide a "prisoner's mailbox" procedure for the filing of documents after the petition in a probate proceeding by an inmate confined in an institution. The provision is virtually identical to the simultaneously added V.R.P.P. 3(e) providing the procedure for irmiate filing of a petition. See Reporter's Notes to that rule. It is also substantially identical to V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C), promulgated effective August 13,2018.

Reporter's Notes-2017 Amendment

Rule 5(e) as originally promulgated is deleted and replaced by language viltually identical to V.R.C.P. 5(h), as simultaneously amended. These rules require a certificate of service to be filed after service of any document under Rule 5. They apply to filings by attomeys as well as by self-represented patties.

To clarify and make uniform the procedures, the amendments make clear that the celtificate may be incorporated in the document filed or be on a separate page and may embrace multiple documents. Further, the amendments make clear that a document filed without a certificate should be accepted for filing, subject to compliance with the order of the judge conceming the filing of a proper certificate.

Many self-represented parties are unfamiliar with the requirement of Rule 5(a) that every filing with the court must also be sent to all other parties or, by viltue of Rule 5(b), their lawyers. The rule amendment is designed to assure the court that other parties have been informed of the filing. It eliminates the problem of a court ruling on a motion because the time to respond has passed and it is unopposed, only to find out later, when a motion to reconsider or reopen is filed, that the other parties were not even aware ofthe motion until the court's ruling.

Even when lawyers appear in a case there are times when it is unclear whether service has been made-for example, where new counsel came in close to the time of a filing, and it is not apparent whether the filing was served on the new counsel. This lack of clarity can lead to misunderstandings, wasted hearing time, reconsideration, or time spent by court staff calling or emailing counsel to determine who has been served.

The rule is not intended to change the requirements of Rule 5 regarding what documents must be served or the manner of service. Federal Civil Rule 5(d) has required certificates of service since 1991. See 4B C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1150 (3d ed. 2002).