Saturday, October 22, 2005
Prof. Stephanie J.Willbanks of the Vermont Law School has recently published her article entitled Parting is Such Sweet Sorrow, But Does It Have to Be So Complicated? Transmission of Property at Death in Vermont, 29 Vt. L. Rev. 895 (2005). Here is an excerpt from the introduction of her article:
Should Vermont adopt the Uniform Probate Code? The Vermont Legislature recently posed this question, among many others, to a study committee consisting of two probate judges, a member of the judiciary, the director of judicial education, and representatives of the court administrator's office, the Vermont Bar Association, the Probate and Trust Law Committee of the Vermont Bar Association, Vermont Legal Aid, the Community of Vermont Elders, and the Agency of Human Services. The study committee reached no conclusion and made no recommendation with respect to this issue, suggesting that additional study and analysis of both Vermont law and the Uniform Probate Code was necessary before making a recommendation. The committee did recommend "[t]hat the legislature change the law of intestate succession and spousal rights to an understandable system reflecting the complexities of modern family configurations."
This article examines the issue not addressed by the committee, i.e., whether Vermont should adopt the Uniform Probate Code, specifically Article II which contains substantive provisions governing intestacy, wills, and donative transfers. This article does not address the procedural aspects of the Uniform Probate Code, i.e., Article III, or the issue of guardianships, i.e., Article V of the Uniform Probate Code. Part II presents the history and general policies underlying the Uniform Probate Code. Part III compares the intestacy provisions of existing Vermont law with those of the Uniform Probate Code, and Part IV does the same for the spousal elective share and omitted heir provisions. Part V analyzes doctrines governing wills under both the Uniform Probate Code and existing Vermont law.
The article concludes that adoption of Article II of the Uniform Probate Code would improve many aspects of Vermont law governing intestacy, wills, and donative transfers. Doing so would clarify existing law and bring the rules governing these issues closer to the average decedent's expectations. Doing so would also simplify many aspects of Vermont jurisprudence and provide guidance to both judges and practitioners on a myriad of issues. The decision to adopt the Uniform Probate Code, however, would not be without costs. The issue for Vermont is whether those costs are worth the benefits.