A probate bond is a type of court bond issued on the performance of an executor of the estate of a recently deceased person. It essentially acts as a guarantee that the executor of an estate will act according to state laws and the terms of the trust or will of the deceased. Should the executor fail to comply with state laws or act in a way that violates the terms of the will or trust, the deceased’s family members, heirs, and other stakeholders can file a claim against the bond. Should the claim prove to be valid, the surety who sold the probate court bond to the executor will reimburse the party who filed the claim according to the terms of the bond. Like other surety bonds, it is the responsibility of the executor or administrator to purchase one.
How does a probate bond work?
Much like other surety, they are a contract between three parties. The first of the parties is the principal or the one who is responsible for purchasing one. This is the executor or the administrator assigned to the estate of a deceased person. The second party is the obligee. In the case of a probate surety bond, the obligee is the heir to the estate. This is usually a member of the deceased’s family, although it can refer to anybody who has a legitimate claim to an estate. The third party is a surety. The surety sells the bond to the principal and is the one who reimburses the obligee should a claim be filed.
When a person dies, their assets often go to probate court to be distributed to the proper parties. This process involves:
- Locating and interpreting the deceased’s will
- Assembling all of their property and having it appraised
- Paying all outstanding debts the deceased may have
- Paying property and estate tax
- Covering the cost for a funeral service
- Distributing any remaining assets among heirs
This process mainly falls to an executor or admin of an estate, who is also required to have one. If there is any malfeasance on the part of the executor, the heirs of the estate can file a claim against the bond. This claim is then investigated by the surety. If it is found to be legitimate, the surety reimburses the heirs for damages as stated by the terms in the surety. It is then up to the executor to reimburse the surety for what was paid out.
Who needs a probate bond?
As a rule, most administrators and executors who are in charge of a deceased person’s estate should buy a probate court surety even if it isn’t required. In many cases, the will or trust of the deceased will require that a probate bond be purchased and put into effect. Most courts will not order a bond to be purchased if there are no outstanding debts and the deceased’s heirs agree to waive the bond. If an executor doesn’t have the agreement of all the deceased’s heirs or if there is considerable outstanding debt, bonding is almost always required during the probate process.
What are the types of probate bonds?
There are several types of probate court bonds, although they all essentially have the same function. Our staff can help you decide which probate bond you will need as an executor of an estate. Types include:
- Administrator – purchased by an administrator, who is assigned to an estate when there is no will present. These bonds ensure the administrator handles the estate responsibly and ethically.
- Personal Representative – someone who is named as the representative of an estate in the deceased’s will. As an administrator, they are responsible for handling the estate as stated by the will.
- Conservatorship – ensures that a court-appointed representative will fulfill all of their obligations to a deceased person’s heir.
- Trustee – purchased by a trustee or someone who is in charge of a deceased person’s assets. It ensures that the trustee will handle all of these assets abiding by the terms in the deceased’s will.
Why you need a probate bond?
As we said before, you technically don’t need to be bonded to handle an estate. If the deceased doesn’t have considerable debt and their heirs wish to waive it, you can go without one. However, it is always in your best interest to have a surety bond. First, it represents a show of good faith to the heirs of the deceased. Even though an executor or administrator can still commit some kind of fraud or other wrongdoing while they are bonded, they will have to pay for it if they are bonded. Having a probate court bond is a guarantee that you will fulfill your obligations to the best of your ability.
Second, having a probate court surety is highly beneficial to anyone who is new to acting as an executor or administrator of an estate. If you have experience and a good reputation as an executor, people might be willing to waive a bond and trust that you will perform your duties admirably. If you are largely untested, your obligees will be more likely to want some insurance. Purchasing one even when you’re not legally required to do so shows that you are taking your obligations seriously and that you can be trusted.
If you are acting as an executor of the estate and you need to purchase one, NFP will be more than happy to assist. Contact us today for more information.