Vt. R. Prob. P. 74

As amended through May 6, 2024

Rule 74 - Waiver of Administration

(a) A motion to waive administration may be made at the time of filing the petition or at any time before an accounting is due. The motion shall be made under oath and shall state that

(1) the moving party:

(A) if the decedent died testate, is the sole beneficiary of the decedent's estate and has been nominated to serve as sole executor, or

(B) if the decedent died intestate, is the sole heir of the decedent's estate and proposed to serve as sole administrator.

(2) the moving party is the sole fiduciary of the estate;

(3) the decedent owned no real property in the State of Vermont; and

(4) the administration will be completed without supervision of the Probate Division in accordance with the decedent's will, if any, and applicable law.

(b) At any time after a petition to administer the estate has been granted, the court may grant a motion to waive further administration if it finds that

(1) the moving party is the only estate beneficiary under the will of a decedent or the only heir of a decedent who died intestate;

(2) the moving party is the sole fiduciary of the estate; and

(3) the decedent owned no real property in the State of Vermont.

(c) If the court grants a motion to waive administration or to waive further administration, the court shall issue an order waiving the duty to file an inventory, waiving or discharging a fiduciary bond, and dispensing with further filing with the court other than an affidavit of administration.

(d) The filing of the affidavit of administration concludes the administration of the estate and shall be filed not less than six months or more than one year after the date of appointment of the executor or administrator and shall state to the best of the knowledge information or belief of the executor or administrator:

(1) there are no outstanding expenses of administration or unpaid or unsatisfied debts, obligations, or claims attributable to the decedent's estate; and

(2) no taxes are due to the State of Vermont, and tax clearance has been received from the Department of Taxes, a copy of which shall be attached to the affidavit.

(e) If the executor or administrator fails to timely file the affidavit of administration, the executor or administrator shall be in default. If the executor or administrator fails to file the affidavit, or request additional time to file the affidavit, within fifteen days after receiving the notice of default, the court may impose sanctions it deems appropriate, including the revocation of the waiver of administration. Notice of the default shall be provided by first-class mail or in accordance with the 2020 Vermont Rules for Electronic Filing if applicable.

(f) Upon receipt of the affidavit of administration, the court may issue such orders as may be necessary to distribute the assets of the estate to the sole beneficiary or sole heir of the estate.

(g) For purposes of this rule, the fiduciary is the sole heir or beneficiary of the decedent's estate if the fiduciary is the sole first-tier beneficiary of a trust for that person or if fiduciary is the trustee of the trust for that person.

Vt. R. Prob. P. 74

Adopted June 12, 2020, eff. 8/18/2020.

Reporter's Notes

Rule 74 is added to implement the provisions of 14 V.S.A. Chapter 80, §§ 1851-1854, enacted by Act 195 of 2017 (Adj. Sess.), § 12. The statute provides a process for all estates other than small estates opened under 14 V.S.A. §§ 1901-1903, under which, on motion and affidavit that the moving party is the sole beneficiary or heir and sole fiduciary and that there is no real property in Vermont, the court may waive further administration.

The provisions of the Rule track the statute with some variations in language and a few additional features noted below.

Rule 74(a), setting forth the elements of a motion to waive, is similar to 14 V.S.A. § 1852(a).

Rule 74(b), enumerating the findings based on which the court may grant the motion to waive, is similar to 14 V.S.A. § 1852(b).

Rule 74(c), containing the elements of the court's order granting the motion, is similar to 14 V.S.A. § 1852(c).

Rule 74(d), providing for the completion of administration on the timely filing by the executor or administrator of an affidavit that that there are no outstanding administrative expenses and that the State of Vermont has given tax clearance, is similar to 14 V.S.A. § 1853(a) and (b)(1), except that the Rule requires that a copy of the tax clearance be attached to the affidavit. Section 1854 of the statute specifically provides that on submission of the affidavit, the court may close the estate and discharge to fiduciary if §§ 1851 and 1852 have been satisfied.

Rule 74(e) provides that if the executor or administrator does not file the affidavit within the time provided in subdivision (d), or file it within 15 days after notice by first-class or in accordance with the 2020 Vermont Rules for Electronic Filing if applicable, or request additional time, the court may impose sanctions, including revocation of the waiver. The rule is similar to 14 V.S.A. § 1853(b)(2), except that the statutory alternative to first-class mail notice is "other means allowed by the Rules of Probate Procedure."