In the world of estate planning, probate bonds serve as an insurance policy of sorts. When you set up your Will and/or Trust, how do you make sure that your executor or Trustee carry out their duties with integrity? It’s tough to monitor a situation when you’ve passed away, to say the least.
This is why probate bonds are a popular option to ensure that your key appointed roles are held accountable and act in the best interest of your estate and your beneficiaries.
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What is a probate bond, you ask? Keep reading to find out the probate bond definition, how it works, and other important information.
What is a probate bond?
A probate bond is a type of bond ordered and required by a court before they will appoint a person or entity as the personal representative of an estate, such as an executor or administrator. The purpose of a probate bond, sometimes called a fiduciary bond, is to hold this individual accountable and liable so that they perform their duties in good faith of the estate.
The probate bond definition is easier to understand with a working knowledge of the probate process and the duties of an executor or administrator. When an individual passes away, someone must submit a death certificate and a petition as a request to start the probate process for the decedent’s estate. This person is typically seeking to be appointed by the court as the personal representative of an estate. If the decedent left behind a Will, then they typically name the person who should be appointed executor. In the absence of a Will, they have died intestate, meaning that the court will appoint an administrator of their choosing.
Once the court grants the request, then the appointed executor or administrator is responsible for managing the estate and probate process. They must notify all potential heirs and debtors of the death while identifying the assets belonging to the decedent. They then transfer these assets to the estate such that they can pay for funeral expenses, taxes and debts. Once all liabilities are paid, then the executor is authorized to distribute the remaining property and assets to the estate’s heirs. Once the court verifies that the executor has carried out their duties in full, the estate is closed.
You may have noticed that the executor (or administrator) has a great deal of control over an estate. Not only do they have access to the assets and property held in the estate, they are entrusted to manage these assets in good faith. How does one know that an executor is honest and trustworthy? This is why a court often orders a probate bond to ensure that they carry out their duties honestly.
How does a probate bond work?
Although they are not the same, a probate bond works similarly to an insurance policy. A personal representative of an estate is often required to purchase a probate bond before they can be appointed by the court as the executor or administrator. Because of this, they must purchase the bond from a surety bond using their personal funds. However, because it is a legitimate estate expense, they can typically reimburse themselves as soon as the estate is opened.
At this junction, anyone can make a claim against this bond. For instance, if an heir feels suspicious that the executor is misappropriating estate funds, they can file a claim with the surety company. The company will then launch an investigation to determine whether the claim is valid or invalid. If they believe that the claim is valid, the surety company will resolve the claim. They will step in and require reimbursement in full from the bond holder if they do not resolve the claim on their own.
Unlike insurance policies, the bond is not designed to protect the individual who purchased it. The probate bond is designed to protect the estate, its heirs, and creditors.
How much does a probate bond cost?
Probate bond costs vary. They typically start at roughly 0.5 percent of the total bond amount, which is based on the size of the estate. In other words, the cost of the probate bond depends on the size of the estate, as well as other factors.
Luckily, a personal representative doesn’t have to pay for the entirety of the bond. They are only required to pay a small portion.
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For example, let’s say you file a petition to open probate for an estate. The court is willing to appoint you as the executor of the estate, but you are ordered to obtain a probate bond in the amount of $250,000.
Here, you won’t have to pay $250,000 to purchase the bond. You’ll likely pay around $1,250, which is 0.5% of the total bond amount.
Are there different types of probate bonds?
All types of probate bonds accomplish the same function of protecting the estate from the appointed executor or administrator. However, the names of these bonds vary based on the set of duties they’re associated with. Here are examples of the different types of probate bonds:
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Administrator bond
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Conservatorship bond
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Estate of court bond
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executor of court bond
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Personal representative bond
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Trustee bond
Frequently asked questions about probate bonds
Imagine that you’ve agreed to serve as executor for your best friend’s estate. It’s a significant responsibility and undertaking, but you’re honored that they are entrusting you to oversee the process of passing their legacy on to their surviving wife and children. Several decades later, they pass away, and you go to the courts to fulfill your duty. Then, you find out that the court is requiring you to purchase a bond. You weren’t prepared for this, and naturally, you have a lot of questions.
Here, you’ve come to the right place! Here the answers to the most frequently asked questions about probate bonds.
What is a probate bond California?
A California probate bond is a bond designed to protect an estate in California. California probate bonds are also sometimes called fiduciary bonds. In the State of California, an individual may be required to purchase a probate bond before they can be appointed as a personal representative of an estate.
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The purpose of the bond is to protect an estate, its heirs, and creditors. If the personal representative mismanages the estate, whether on purpose or by accident, they are held financially liable via the bond.
What are bonds in a Will?
A bond designed to protect an estate can go by many different names, such as probate bond, fiduciary bond, and estate bonds.
When referring to a bond related to a Will, it is typically describing the bond that is required of the personal representative of an estate. When a court appoints an individual as an executor or administrator of an estate, they typically require that they purchase a bond, regardless of whether there is a Will or not.
What is a bond in a Trust?
A Trust is an estate planning document that is separate from a Will. It is created by an individual who wishes to have their property and assets transferred to a Trust. This is a fiduciary arrangement that allows a third party to manage assets on behalf of its beneficiaries. Living or Revocable Trusts are a popular option, as they allow individuals to set up the Trust during their lifetime. The assets pass to the Trust directly upon their death, and allow for precise terms that control how and when beneficiaries should inherit their assets.
The trustee is the appointed third party who is responsible for managing these assets and ensuring that they are transferred from the Trust to beneficiaries in the nature and timing defined by the Trust’s terms.
A trustee bond operates similarly to a probate bond; it ensures that the interests of the beneficiaries are protected in case a trustee does not fulfill their duties adequately. If a trustee is found to have mismanaged Trust funds or somehow does not fulfill their duties as trustee, then the bond ensures that the affective beneficiaries are provided with financial recovery.
Do I Need a Probate Bond?
If you are an executor or administrator of an estate, then you are usually required to purchase a probate bond. You will find out when the court orders you to purchase a bond before you can be appointed to the position.
There are some exceptions in which a court may not require a probate bond. The Testator, for instance, may have created a valid Will in which there is a statement waiving the bond requirement. They might do this if they fully trust you and believe you will act honestly and in good faith. The heirs may also unanimously agree that the nominated executor is trustworthy, in which case the court may determine that a bond is not required.
In another instance, there may be no Will. If all of the heirs are adults, they have the option to sign a waiver that releases the requirement of the bond. However, even with a waiver or a provision, the court maintains discretion to require a personal representative to purchase a bond before they can manage an estate. When an estate has a large amount of unsecured debt, for example, the court may require a bond to better protect the creditors of the estate.
At Trust & Will, we’re here to help keep estate planning simple. You can create a fully customizable, state-specific estate plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning options today!
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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