Bonds Required Of Personal Representatives

Courts appointing someone to control another person's assets often require security. The probate bond is that security, and whether it is needed usually depends on a single sentence in the will.

What the bond does

A probate bond is a form of surety. If the representative misappropriates assets or causes loss through breach of duty, beneficiaries and creditors can claim against the bond.

The surety company pays the claim and then pursues the representative personally for reimbursement, so the bond protects the estate rather than the individual.

Its size is generally set by reference to the value of personal property in the estate and any expected income, rather than to real estate the representative cannot readily sell.

Why most wills waive it

The premium is an estate expense, paid annually while administration continues, and it reduces what beneficiaries receive without adding anything they value.

A testator who chose a trusted family member has already made the judgement the bond is designed to substitute for, so waiving it is treated as the natural consequence of that choice.

Standard drafting therefore includes a waiver, and courts in most places honour it unless there is a reason to override the testator's direction.

When a court requires one anyway

Intestate estates commonly require a bond, since no testator has expressed confidence in the person appointed and the appointment may be contested.

Courts also impose bonds where the representative lives outside the jurisdiction, has a poor credit history, or where beneficiaries have raised credible objections.

A representative who cannot obtain a bond, because sureties decline the risk, may be unable to serve at all, which effectively transfers the appointment to someone else.

The practical friction it creates

Obtaining a bond involves an application, a credit assessment and a premium payment before letters are issued, adding delay at the start of administration.

Beneficiaries can sometimes consent to waive a bond the court would otherwise require, though minors and unborn interests cannot consent, which limits that route.

Where a bond is in place, the court may restrict access to accounts as an alternative form of control, requiring approval before withdrawals above a stated amount.

What it does not protect against

A bond covers loss from the representative's misconduct. It does not cover investment losses, market declines or decisions that were reasonable but turned out badly.

Nor does it accelerate anything. Recovering on a bond is its own claim, requiring proof of loss, and it comes long after the money has gone.

Bond requirements, waiver practice and amounts vary by jurisdiction and change over time. This is general information rather than legal advice, and specific appointments should be discussed with a qualified professional.