Collection Procedures in Probate Court
Posted on Feb 20, 2012
As part of an article written by our Trust and Estate Department, we are proposing that litigants in probate court be able to use the same tools as are available in the Civil Division of the Superior Court to protect their financial interests when filing a petition and to collect final judgments. Current probate rules do not set forth the normal civil rules “tool kit” of pre-judgment mechanisms for finding assets and securing them until final judgment.
In terms of post-judgment relief, proposed new Rule 72 on the use of contempt powers (see Newman’s Blog 2/23/12) is restricted to cases where the individual found in contempt essentially “has the key to his own jail cell” because the respondent can comply with the order of the court. In essence, for contempt to lie the respondent’s failure to comply with a probate court order must be contemptuous rather than involuntary. To put the matter in the reverse, when the money is gone contempt should not be usable to collect a debt because courts cannot place individuals in debtors’ prisons. Collection in such cases must be had through trustee process, attachment, wage garnishment, and the other procedures available in the Civil Division.
The following is a proposed rule of probate procedure that would make it clear to litigants and probate judges that such pre-judgment and post-judgment tools are available. At the same time, the new rule would set forth a road map for how a contested case will be handled in probate division. At the moment, litigant and probate judges have to decide among themselves which civil division rules will apply. In the absence of such an agreement, the first topic before the court is what discovery, time periods, and procedural rules will be imposed on the litigants.
The following rule is modeled on Family Rule 4, which sets forth the different attachment and collection procedures in divorce separation actions.
Rule 2.1 Contested Case
(A) Applicable Rules
(1) In General. The Rules of Civil Procedure shall apply to contested cases, except as otherwise provided in this rule.
(2) Rule Not Applicable. Rule 79.1 of the Vermont Rules of Civil Procedure (Appearance and Withdrawal of Attorneys) does not apply to actions under this rule.
(3) Rule Modified. Rule 54 of the Vermont Rules of Civil Procedure shall apply to actions under this rule, except that a judgment need not be set forth on a separate document and is effective only when it is in writing, signed by the judge, and entered as provided in Rule 54.
(4) Attachment and Wage Withholding. Attachment of real or personal property or on trustee process may be used at the commencement of a proceeding or in connection with the enforcement of an order of the court. The Rules of Civil Procedure shall apply to actions seeking wage withholding to enforce an order of the court to pay a sum certain.
(5) Temporary Relief. At any time after the commencement of the proceeding, either or both parties may apply for temporary relief. The court may make such orders pending final hearing as the court would be authorized to make upon final hearing except that the court may not change title of real or personal property without the consent of the parties, except upon good cause shown.
(6) Status conference. A status conference shall be held when the action is ripe for final hearing, if not requested earlier by a party or scheduled by the court.
(7) Discovery. Discovery may be taken as in civil actions, except as follows:
(a) Depositions, physical examinations and mental examinations shall be taken only by order for good cause shown, except that depositions may be taken without court order on issues of the identity and location of property of the estate, support, and property division as in civil actions.
(b) A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions as to which the expert is expected to testify and a summary of the grounds for each opinion. A party may not serve upon any other party more than 25 additional interrogatories, including all discrete subparts, without leave of court or written stipulation.