What’s New?, 18 VTBJ, Summer 2018-#28
| Author | Robert Pratt, Esq. |
| Position | Vol. 44 2 Pg. 28 |
A Modest Proposal: Limited New Approaches to Decedents’ Probate
Robert Pratt, Esq.
In 2010, a committee was formed as part of the Probate and Trust Law Section of the VBA to review comprehensively our laws governing decedents’ probate estates. The committee comprised four probate judges, approximately 12 lawyers (some serving only on subcommittees, others serving on the central committee as well), and three trust officers.[1] We allocated responsibilities by chapter in Title 14 and embarked on an eighteen-month journey to evaluate what worked, what could work better, what didn’t work, what wasn’t needed, and what needed editorial adjustment for consistency and modernity. The eighteen months turned out to be the first leg of a seven-year journey.
This article will describe several significant changes to or additions to the law, designed primarily to simplify the processes of opening and administering estates, including: self-proving Wills, waiver of a spouse’s election rights, avoidance of accounting requirements for closing an estate, and a simplified administration process when the sole fiduciary and the sole beneficiary are the same person. The bulk of the changes involve modernization of language, employment of more consistency in terms, and implementation of current standards for statutory language. The new law applies to Wills made or offered for probate on or after July 1, 2018.
1. Self-Proving Wills. Current requirements for opening a testate estate are consents of the surviving spouse and heirs-at-law, or a hearing at which at least one of the attesting witnesses testifies to the execution process for signing the Will. The self-proving Will affidavit does not affect Wills that are challenged for failure of proper execution, undue influence, incapacity, or other objections where, if available, both Will witnesses must testify and other evidence can be presented on the issues raised in the objections.
Contents of self-proving affidavit, to be acknowledged by the testator and the witnesses before a notary public:
(a) The testator signed the instrument as the testator’s will or expressly directed another to sign for the testator in the presence of two witnesses.
(b) The signing was the testator’s free and voluntary act for the purposes expressed in the will.
(c) Each witness signed at the request of the testator, in the testator’s presence, and in the presence of the other witness.
(d) To the best knowledge of each witness at the time of the signing, the testator was at least 18 years of age, or emancipated by court order, and was of sound mind and under no constraint or undue influence.
The key objective of self-proving Wills is that they permit admission of a Will without written consents and without a hearing if there were no objection. A typical fact pattern that highlights the value of this alternative is the proffer of a Will that omits from any benefits a surviving child but the child, while having no interest in giving consent, also has no interest in challenging the admission. Without the need for a hearing with at least one witness testifying, the Will can be admitted on the basis of the self-proving Will affidavit.
The changes do allow for judicial discretion. Absent objection by any party, it would be expected that the Will would be allowed if the affidavit complies with the requirements, but the probate judge could still inquire further if the judge were not satisfied with something about the Will as presented.
The Will affidavit components have been written to align with other self-proving statutes around the country, providing the opportunity for additional case law...
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