First, the surviving spouse receives all of the deceased spouse’s estate, if all of the deceased spouse’s children are the natural children of the surviving spouse. If the deceased spouse had children from another relationship, his or her children take 1/2 of the estate, and the surviving spouse takes 1/2.
If a decedent does not have a spouse, the decedent’s children, and grandchildren of deceased children receive the estate. If there is a deceased child, his or her children will only receive the deceased child’s share.
If there are no spouses and no children, the decedent’s assets will go to parents; if no parents, then to grandparents, if no parents or grandparents, then to siblings, if no siblings, then to aunts and uncles, and then finally to cousins.
Another change solves a problem that had never been addressed before by the legislature: the law now voids provisions in wills to spouses if the will was executed prior to a divorce. In the past, if a person got a divorce and neglected to change his or her will, his or her former spouse would recieve what was provided for in the deceased former spouse’s will.
The new statutes also void transfers for no consideration that are used to defeat a spouse’s inheritance.
Finally, the statutes provide that heirs who are “half blood” are considered to be the same status as “full blood.”
>The Vermont legislature enacted comprehensive legislation last year involving estates, trusts, and intestacy statutes, some overturning centuries old law. I will do a series of articles on the new statutes. The first will be on on a brand new provision to take care of your pets after you die.
Vermont has enacted a provision to provide for an enforceable trust to take care of your pets. Under common law, a trust for the benefit of a pet was not enforceable, because a beneficiary of a non-charitable trust was the only one who could enforce the provisions of the trust–and animals have no standing in court. Therefore if you set up a trust for your pet before this statute was enacted, you would have to rely on the trustee’s honor to follow the terms of the trust. The new statute (14A V.S.A. section 408) provides that a trust set up for a pet may be enforced by a person appointed in the trust, or by the probate court. In addition a “person having an interest in the welfare of an animal” may petition probate court to enforce the trust or remove the trustee.
The statute also provides that the trust may cover any pet that you may own at the date of death, and not just pets you own when you create the trust.
In addition, the statute gives probate court power to determine whether the property in the trust exceeds the amount required for the care of the animal. Thus if you give a million dollars in trust for your cat, and make no provision for distribution of the excess funds, the probate court is authorized distribute the excess to your heirs or beneficiaries.
A trust for a pet can be made part of your will. Therefore, if you wish to make provision for your pets, it is good advice to see your attorney about adding a trust provision for your pets to your will.
- Where does my property go if I do not have a will?
If you do not have a will, the state will distribute your property by what is called the laws of intestacy.
Each state’s intestacy laws are different.
For example, In New Hampshire, the first $250,000 of your estate, whether real or personal property, would go to your spouse. After $250,000, your estate is divided between your spouse and your children.
In Vermont, only one third of your estate will go to your spouse if you have two or more children; and two thirds of your estate will be divided up among your children.
If you are not married and have no children, in both New Hampshire and Vermont, your estate will go to your parents.
In neither state will your assets go to any unmarried partner who is living with you.
The intestacy laws will distribute your property the way the State believes it should be distributed, not the way you want it distributed.
- Do I need a will to take care of my minor children?
Yes. If you die and have minor children, the other parent will automatically be awarded custody of your children, even if you are no longer married to him or her and custody was awarded to you. However, a will with a trust provision will ensure that the person you designate will be in charge of the property and income that your children receive at your death. In addition, if your children have no other fit parent surviving, the guardian for your children whom you designate in your will, if he or she is fit, will be appointed by the court as guardian.
- Do I need a will to make sure the state does not take my assets?
Generally, no. The only time the state would take your assets is if you have no relatives. The intestacy laws in Vermont provide that your relatives as distant as third cousins will inherit your assets; and in New Hampshire, relatives as distant as first cousins will inherit. Therefore, unless you have no relatives, there is no danger that the state will take your property if you do not have a will.
- Can a will protect my estate from taxes?
Yes and no. A simple will does not protect your estate from federal taxes. You will need a more complicated estate plan, including a will, to minimize your tax burden. As of 2009, there
is no federal estate tax on any estates valued at less than $3,500,000, so most people do not need to be concerned about tax planning. However, the estate tax laws may be changed dramatically by Congress in the near future; therefore it is important to talk to your attorney about those changes.
- Are there other benefits from executing a will?
Yes. You can designate an administrator in your will, and the court will appoint that person. You can also provide the administrator with more powers than allowed under the probate statutes.
In addition, you can set up a trust in the will which will control how your property is managed after your death.
Finally, you can make it easier for your heirs to divide up your household and personal effects. This is often the least valuable property in your estate, but is often the property that your heirs will more likely argue over because your personal effects have sentimental value. Giving your administrator power to make a final determination as to how to divide such property can save everyone time and emotional heartache.
- Are there any disadvantages to making a will?
Yes. Once you make a will, its provisions will govern how your property will be divided after your death, no matter how your circumstances change. There may be deaths or divorces in your family; you may have a child who has special needs, your assets my have grown so that tax planning is necessary. Finally, the laws may change so that your will does not protect your assets as you planned when you executed the will. A good example is the tax law, which is slated to change dramatically in the next few years. It is best, then, to review your will every three years, and every time there is a major change in your family circumstances or assets. Your lawyer should be reminding you to update your will every few years, or whenever there is a major change in the law.
- Where should I keep my will?
You should keep it where your heirs can find it immediately after your death. For example, a safe deposit box or a locked safe is not a good place for a will if your heirs do not have access to the box or know where to find the key to the safe. So it is best to plan to put your will in a safe place that will be accessible to your heirs after your death. Your attorney may offer to hold your will in his or her office. In that way, the attorney can notify your heirs at your death as to the location of the will.
- Do I need an attorney to help me with my will?
Generally, yes. While there are good online programs for drafting wills, a lawyer will review in depth your assets, your wishes, and talk to you about any potential pitfalls. A will is drafted to take into account, as much as practicable, what may happen in the future, and a review by a lawyer of your circumstances will can better help you predict and take into account any future contingencies when drafting your will.
In addition, a lawyer will be able to let you know if you need more complicated estate planning for either tax purposes or Medicaid planning. Finally, most lawyers will safeguard your will, and remind you of any legal issues that may come up in the future that will affect your will.