Rules of Probate Procedure
Rule 4. Notice; Process
(a) Form of notice. The notice shall bear the signature or facsimile signature of the judge or register, or petitioner's attorney, contain the name of the court and the name of the decedent or proposed ward, be directed to the recipient by name if known, state the name and address and telephone number of the petitioner or of the petitioner's attorney, state the date and place of hearing or reply if either is required, and advise the recipient that the action or order sought may be granted if no interested person appears to object. Where appropriate, the notice shall also state clearly that the recipient must enter an appearance to receive notice of further actions or filings in the proceeding and shall specify how the recipient can enter an appearance. The court may require that a form on which the recipient may enter an appearance be attached to the notice.
(b) Issuance of notice. The notice may be procured in blank from the register and filled out by the petitioner or the petitioner's attorney as provided in subdivision (a) of this rule. Alternatively, if the notice is to be served by the register the notice shall be filled out by the register. If the notice is to be served personally, the original notice upon which to make a return of service and a copy of the notice and petition for service shall be delivered to the person serving the notice. If the will or trust instrument is annexed to the petition, the copy of the petition to be served need not include the will or trust.
(c) By whom served. If service is to be made by mail or by publication, the court shall direct who will give notice. Personal service shall be made by a sheriff or his deputy, or by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by the court, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result. When service by any method is to be made by the register, the petition shall provide a list of persons and their addresses if known, and the petitioner shall bear the cost of service.
(d) Service of notice. The notice and, where appropriate, the petition shall be served together, sufficiently in advance of any hearing to satisfy the requirements of Rule 12(a), by one of the following methods:
(1) Except as otherwise ordered by the court, the notice and petition shall be served by certified mail, with return receipt requested, upon all persons who are parties at commencement pursuant to Rule 17, including any person who has appeared under Rule 79.1. The mailing shall be addressed to the recipient at the post office address given in the notice of appearance, if any, or at the recipient's office or place of residence. Service by certified mail is complete when the mail is delivered and the receipt signed or when acceptance is refused, provided that the petitioner or register shall file either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the notice and petition was sent to the party being served by ordinary mail. Alternatively, the notice and petition may be served upon any of such persons personally, by any method provided in subdivisions (d) or (e) of Rule 4 of the Vermont Rules of Civil Procedure for service of process in civil actions. Service shall also be made by publication as provided in subdivision (e) of this rule upon any such person whose address or present whereabouts is unknown and cannot be ascertained by due diligence; in cases involving a decedent's estate in which there is reasonable cause for doubt as to who the interested persons are; and, in other proceedings on order of the court, upon all unknown persons.
(2) If a party to be served is a minor, copies of the notice and the petition shall also be served by the appropriate method upon the minor's guardian, if there is one within the state known to the party making service and, if not, then upon the minor's father or mother or other person having care or control or with whom the minor resides. If service cannot be made upon any of them, then it shall be made as provided by order of the court.
(3) If a party to be served is an incompetent person, copies of the notice and petition shall also be served by the appropriate method upon the guardian of the incompetent person or a competent adult member of the family with whom the incompetent person resides or, if the incompetent person is living in an institution, then upon the director or chief executive officer of the institution. If service cannot be made upon any of them, then it shall be made as provided by order of the court.
(4) The court on its own motion or for cause shown may order service to be made upon any party by a method other than those specified in this subdivision, so long as the method ordered is as calculated to give notice to the party as any other method reasonably available in all the circumstances.
(e) Service by publication. When service by publication is required by this rule or by order of the court, the person directed by the court shall cause the substance of the notice prescribed by subdivision (a) of this rule, and a brief statement of the object of the petition, to be published once a week for two successive weeks and at least seven days apart in a designated newspaper of general circulation in the probate district where the petition was filed, or such other location as the court may direct. The first publication of the notice shall be made within 20 days after the petition is filed or the order is granted. Service by publication is complete on the day of the last publication.
(f) Proof of notice; return of service. The person responsible for service by mail or publication shall file an affidavit setting forth the name and address of each person served and the means by which service was made upon each person served, accompanied by any documentary evidence to show that service was completed. Where the notice is served personally, proof of service shall be made as provided for civil actions in Rule 4(i) of the Vermont Rules of Civil Procedure.
(g) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any notice, process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party to whom the notice or process issued.
(h) Alternative provisions for service in a foreign country.
(1) Manner. When service is to be effective upon a party in a foreign country, it is also sufficient if service of the notice and petition, if appropriate, is made:
(A) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B) As directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or
(C) Upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or
(D) By any form of mail requiring a signed receipt, to be addressed and dispatched to the party to be served; or
(E) As directed by order of the court.
Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the register shall deliver the notice or summons to the party making service for transmission to the person or the foreign court or officer who will make the service.
(2) Return. Proof of service may be made as prescribed by subdivision (f) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1)(D) of this subdivision (h), proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
Amended May 14, 1986, eff. July 1, 1986.
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