Vt. R. Prob. P. 3

As amended through June 3, 2024

Rule 3 - Commencement and Duration of Proceedings

(a) Commencement generally. Except as otherwise provided in Rules 57, 60.1(d), or 72, a probate proceeding is commenced by filing with the court a petition directed to the court and a list of interested persons as defined in Rule 17 on forms appropriate to the proceeding accompanied by the appropriate filing fee. Notice shall then be served in accordance with Rule 4 upon all interested persons, except as otherwise provided in paragraph (b)(2) of this rule.

(b) Commencement and duration: decedents' estates.

(1) For purposes of these rules, a probate proceeding involving a decedent's estate shall begin with:

(A) a petition to open an estate, or

(B) a petition to begin a proceeding authorized by law with respect to a decedent's estate, including a declaratory judgment petition, if the decedent's estate is not already the subject of a probate proceeding under this subdivision, and shall continue until the proceeding is closed pursuant to Rule 60.1. The petition shall be accompanied by a death certificate or other proof of death satisfactory to the court and the original will, if any, and any codicils thereto.

(2) If a petition to open a decedent's estate alleges that the estate contains no assets that will pass by will or under the laws of descent and distribution, and is accompanied by an affidavit of the petitioner attesting to the lack of any such assets and setting forth facts demonstrating the need of an executor or administrator to perform administrative acts for the estate, the court will issue letters testamentary or grant administration to enable performance of such other acts as may be necessary to administer the estate.

(3) If the petitioner reasonably believes that all interested persons identified at the commencement of the proceeding pursuant to Rule 17(a)(1) will consent to the allowance of the will, or to the intestate proceeding, as provided in Rule 16, the petitioner may file the petition without serving them and may seek their consents. If all interested persons file consents, the court may proceed with the petition without further notice; provided that if any interested person does not file a consent within a reasonable time, the court will set a hearing date, and the petitioner will serve notice of the hearing on all interested persons.

(c) Commencement and duration; trust proceeding. For purposes of these rules, a probate proceeding involving a trust shall begin with a petition to open a trust proceeding and shall continue until the trust is closed pursuant to Rule 60.1.

(d) Commencement and duration; guardianship. For purposes of these rules, a probate proceeding involving a guardianship shall begin with:

(1) a petition to appoint a guardian, or

(2) a petition to begin a proceeding authorized by law with respect to the estate or person of a child or adult in need of guardianship, or a child or adult under guardianship, including a declaratory judgment petition, if the estate or person of the ward or proposed ward is not already the subject of a probate proceeding under this subdivision, and shall continue until the proceeding is closed pursuant to Rule 60.1. The petition for a minor guardianship shall be accompanied by a birth certificate or other proof of parentage satisfactory to the court.

(e)Petition filed by an inmate confined in an institution.

(1) A petition 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 petition stating the date the petition was deposited in the institution's internal mailing system. The notarized statement establishes a presumption that the petition 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.

(2) 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.

Vt. R. Prob. P. 3

Amended May 14, 1986, eff. 7/1/1986; 6/21/2011, eff, 8/22/2011; 12/11/2014, eff. 2/13/2015; amended July 1, 2015, eff. 9/1/2015; amended November 5, 2018, effective 1/7/2019.

Reporter's Notes-2019 Amendment

Rule 3(e) is added to provide a "prisoner's mailbox" procedure for the filing of a petition in a probate proceeding by an inmate confined in an institution. The amended rule is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017, and V.R.C.P. 3(b), adopted effective August 13, 2018. As stated in the Reporter's Notes to V.R.A.P. 4(f), which is similar, but not identical, to F.R.A.P. 4(c)(1), the rule

provides that deposit of a [petition] in the internal prison mailing system can constitute timely filing and requires use of a prison "legal mail" system if available. The rule also explicitly creates a rebuttable presumption that the filing is timely if accompanied by a notarized statement showing deposit in the institution's internal mailing system on or before the last day for filing. Paragraph [(2)] follows the federal [appellate] rule in allowing evidence of timely filing other than the notarized statement. Unlike the federal rule, the rule does not require a statement that postage has been or "is being" prepaid, nor does it give the Court discretion to allow later filing of the notarized statement.

Although most prisoner filings are not petitions, a rule governing petitions is desirable, particularly in view of issues raised by the housing of prisoners in out-of-state prisons with differing systems. A simultaneous amendment adding V.R.P.P. 5(f)(2) establishes an identical procedure for inmate filing of documents after the petition that are required to be filed by V.R.P.P. 5.

Reporter's Notes, 2011 Amendment: Rule 3(c) is amended for consistency with the provisions of the Vermont Trust Code, 14A V.S.A. §§ 101 - 1204, enacted by Act 20 of 2009.