Although the principle of the trust can revoke this instrument at any time during their life, things become much more complicated if such a revocation does not occur. In these circumstances, a trustee and executor of an estate are faced with the difficult task of reconciling what holds precedent, the will, trust or a combination of both.

14A VSA § 604-Contesting validity of trust after death.

After the death of the settlor, a party can contest the validity of the trust within 3 years after death. Evidence can be presented to the Probate Court as to why a trust should be considered. Such evidence could include but is not limited to:

1. A divorce order that proceeded the date of the trust: This is especially relevant in cases where the primary beneficiary is the former spouse;
2. A subsequent estate planning document such as a will that aims to convey similar property that is set forth in the terms of the trust.
3. Written intent by the donor as to their intent to change the terms of the trust or their intent to outright revoke all terms.

Vermont estate planning should always be considered an open door while an individual is alive and their personal and professional circumstances remain fluid. Ensuring that estate documents are regularly updated is a good way to avoid potential pitfalls such as they forgotten trust. Although some time and expense may need to be regularly incurred, it beats the alternative of leaving your loved ones with a tangled web of estate documents that may hold little relevance to the present, but who could still hold legal precedent in the eyes of the law.

An Enhanced Life Estate Deed also referred to as a Lady Bird Johnson Deed (courtesy of President Lyndon Johnson) has served an important role in many Vermont landowner’s estate plan for many years. The basic premises of an ELED is to convey property to a third party (often children or grandchildren) that reserves all rights to the owner, while they are alive.

It is important to distinguish a life estate deed from that of an ELED. While a Life Estate Deed only bequests to the grantor a right to reside at the premises for their natural life, the Vermont Enhanced Life Estate Deed Act provides the following protections:

(a) a common law life estate, with the exclusive use, possession, and enjoyment of the property; and (b) the right to convey the property (emphasis added).

Simply put, if you convey an ELED, you do not forfeit any rights while you are alive and, if you decide at a later date to sell the property, or convey it in a different way then is set forth in the ELED, you have the right to do so by executing a new conveyance instrument such as a deed or mortgage.

Does a Vermont Enhanced Life Estate Deed Avoid Probate?

In simple terms, a legally executed ELED allows the named Grantees title ownership upon the Grantor’s death. Similar to a transfer upon death designation (TOD), the asset avoids the need for probate and thus limits the complexity of the estate when it is time to appoint an executor and begin seeking court approval for the transfer of assets to the named beneficiaries.

Seek the Right Advice for Limiting the Complexity of Your Vermont Estate

Although no one can fully predict what the future will bring, there are reasonable steps that can be taken in order to lighten the burden on your loved at the time of your passing. An Enhanced Life Estate Deed may just be one of those steps you can take now, to meaningfully lighten that load now, while ensuring some peace of mind for those dearest to you.

Disclaimer

The above content should only be considered informational. None of the content should be considered legal advice. Readers of this content should consult with their own attorney regarding any specific questions they have on estate planning or any other legal matter surrounding it.