Voiding a Vermont Revocable Trust After Death

One of the many issues that may arise in probating an estate is determining whether old estate planning documents, that may have slipped the mind of the decedent when they created new documents should still govern how an estate is distributed at the time of death. It is not uncommon for old Vermont trusts to be discovered that were long ago forgotten. Often times, these documents were constructed before a major event such as a divorce or birth of a child and, as time passes, the content appears less and less relevant to the individual’s current wishes.

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.