How an Intestate Estate Passes in Vermont

In Vermont, if you die without a will, but are survived by spouse, the spouse receives the entire intestate estate (the term that applies to the estate when there is no will), even if the deceased has children – so long as those children are also the children of the spouse. If the deceased had “other children” and thus other descendants, then the estate is split in half. One half of the estate goes to the surviving spouse and the other half goes to the descendants.

In the event there is no spouse and there are no descendants, then the estate goes to the surviving parents. If no surviving parents, then the estate goes to siblings and the descendants of any deceased siblings by something referred to as the “right of representation.” Put simply, the descendants of the deceased sibling “represent” the deceased sibling’s share and take that share equally as if the deceased sibling had lived.

If still no one is taking the probate estate, it goes first to grandparents if they are alive, and then to the dreaded “next of kin” in equal degrees. There are charts of kinship to look at to determine “who’s on first and who’s on second.” For example you can get into such niceties as “kindred of the half blood.” This can be a very unpleasant undertaking as it isn’t simple to figure out.

It can take a little time to settle an estate. For that reason, if the decedent is survived by a spouse and its taking “too much time to settle the estate” and the surviving spouse and family are in need, the probate division of the superior court can provide a “reasonable allowance” for the expenses of maintenance of the surviving spouse and children. I’m not certain people will like the word “allowance”. I would prefer an “advance.” Interestingly, this allowance can take place even when the probate estate is insolvent; however, there is an eight month limit on the allowance. If there is a creditor out there, they are likely saying “ouch.” Other allowances can be provided to children under 18 years of age. “Double ouch.”

One of my favorite phrases in the law is “waiving the will and taking a statutory share.” Let me give you the scenario. Let’s say Gus and Mary are married, but Gus has a girlfriend. As Gus is nearing death, he writes a will and leaves everything to the girlfriend and nothing to his wife. Upon Gus’s death, Mary can waive the will (essentially saying I don’t want to take under the will because it doesn’t leave me anything) and take what is referred to as her statutory share, which in Vermont is one-half. Nice try, Gus, but note: the girlfriend gets the other half.

For anyone contemplating murder, you should know this: if you were going to inherit under a will and you speed up the process by killing your loved one, you forfeit your right to inherit. Hopefully, this will be an incentive not to violate the sixth commandment.

R. Peter Decato