What is a Probate Bond?
Probate bonds are a subset of the broader court bond category that must be filed with the probate court responsible for settling estates in the jurisdiction where the estate assets or beneficiary of those assets resides. Probate bonds, also referred to as “fiduciary bonds”, are required by the probate court as a condition of appointment for the fiduciary responsible for managing the estate. A fiduciary is defined as a person to whom property or power is entrusted for the benefit of another. Probate bonds can be classified in the following categories based on the role of the fiduciary:
- Administrator Bonds - Fiduciary appointed by a probate court to handle the affairs of a person who has passed away.
- Executor Bonds - Fiduciary designated by an individual through a will to handle his or her affairs after death.
- Guardianship Bonds - Fiduciary appointed by a probate court to administer the estate of a ward. A ward is defined as a minor OR a person who has been declared legally incompetent. Guardians may also have authority to make health related decisions for the ward.
- Conservatorship Bonds - Fiduciary appointed by a probate court to administer the estate of a ward. Conservators’ responsibilities are generally limited to the financial affairs of the estate.
Probate bonds must be issued by insurance carriers admitted in the state where the court requiring the bond resides. The insurance carrier issuing any surety bond, such as a probate bond, will also be referred to as the “surety company” or the “bond company”.
Why is a Probate Bond Required?
Probate bonds protect the probate court by transferring to a surety bond company the cost of ensuring the beneficiary of an estate is compensated for damages resulting from the fiduciary failing to perform the duties of his/her appointment. The surety company provides the probate court a guarantee (the surety bond) that the beneficiary of an estate will receive payment for financial damages due to a violation of the statutes and regulations pertaining to fiduciary duties up to a limit specified in the bond (“penal sum” or “bond amount”). Ultimately, fiduciaries are responsible for their actions and required by law to reimburse the surety company for any payments made under the bond. Probate bonds refer to the court appointed fiduciary as the Principal, the surety bond company as the Obligor and the court requiring the bond as the Obligee.
Probate bond violations triggering a bond payout may include a fiduciary misappropriating estate assets, failing to keep accurate accounting records, or acting in a manner that disregards the best interests of the beneficiary.
How much does a Probate Bond Cost?
Probate bond rates vary from state to state, but typically cost .75% of the bond amount with a $100 minimum premium.
Is a credit check required for probate bonds?
Credit checks are typically required for probate bonds for larger estates or guardianship bonds that will need to be in force for long periods of time.
Estates with the following circumstances may find it difficult to secure a surety bond:
- Bond is required on demand of an interested party (not including the probate court), i.e. a creditor of the estate.
- Heirs are disputing the distribution of the estate
- Prior fiduciary is being replaced
- Fiduciary is indebted to the estate.
- Estate assets contain a going business.
What is the Uniform Probate Code?
Due to the wide variation of probate law among the states and escalating cost and time needed to distribute assets, the National Conference of Commissioners on Uniform State Laws (NCCUSL) created a means to streamline administrative requirements. The Uniform Probate Code (“UPC”) is a body of legislation that reduces the costs of estate administration, in part by eliminating the surety bond requirement for most states. To date, roughly a third of the states have adopted the UPC filing.
UPC Adoption by State
|State||UPC Adopted?||UPC Citation||Non-UPC Citation||Adoption Date|
|Alabama||No||AL § 43-8-1||1982|
|Alaska||Yes||A.S. § 13.06 - A.S. § 13.36||1972|
|Arizona||Yes||A.R.S. § 14-1102||1/1/1974|
|Arkansas||No||A.C.A. § 28-1-101 et seq. Select Title 28||7/27/2011|
|California||No||West’s ANN, CAL. PROB. CODE § 1 et seq||07/1/1991|
|Colorado||Yes||C.R.S.A §§ 15-10-101 to 15-17-103||05/2013|
|Connecticut||No||C.G.S.A § 45a-1||1991|
|Delaware||No||12 DEL. C. §§ 101-61.605||1997|
|District of Columbia||No||D.C. ST § 20-101 et seq.||04/09/1997|
|Florida||No||West’s F.S.A. §§ 731.005-735.302||1/01/2002|
|Georgia||No||GA. Code Ann. §§ 53-5-1 to 53-5-7||1996|
|Hawaii||Yes||HRS § 561:1-101||1996|
|Idaho||Yes||I.C. § 15-1-101 et seq||1971|
|Illinois||No||755 ILCS § 5/1-1 et seq||1/1/1976|
|Indiana||No||I.C. §§ 29-1-1-1 to 29-1-20-1||7/1/1997|
|Iowa||No||I.C.A §§ 633.1 to 633.722||1963|
|Kansas||No||K.S.A §§ 59-101 to 59-3513||7/1/1939|
|Kentucky||No||K.R.S. §§ 391.010 to 397.109||6/21/1974|
|Louisiana||No||L.S.A §§ 9:2421 to 9:2425||1915|
|Maine||Yes||18-A M.R.S.A §§ 1-101 to 8-401||1/1/1989|
|Maryland||No||MD Code Ann Est & Trusts §§ 1-101 to 12-103||7/1/1974|
|Massachusetts||Yes||M.G.L.A 190B §§ 1-101 to 3-1204||3/12/2012|
|Michigan||Yes||M.C.L.A §§ 700.1101 to 700.8206||04/1/2000|
|Minnesota||YES||M.S.A. §§ 524.1-100 to 524.1-404||8/01/2008|
|Mississippi||No||Miss Code Ann §§ 91-1-1 to 91-1-31, 91-5-1 to 91-5-35, 9-7-1 to 9-7-331||Various|
|Missouri||No||V.A.M.S §§ 472, 473, 474||Various|
|Montana||Yes||M.C.A §§ 72-1-101 to 72-5-638 & § 72-16-601 to 71-16-612||1974|
|Nebraska||No||Neb Rev Stat §§ 30-2201 to 30-2902, 30-3901 to 30-3923 and 30-4001 to 30-4045||1974|
|Nevada||No||NRS Title 12 Chapters 132-151||1941, Amended 1999|
|New Hampshire||No||NH Rev. Stat. T. LVU “Probate Courts and Decedents’ Estates,” Chapters 547 to 567-A||Various|
|New Jersey||YES||N.J.S.A §§ 3b:1-3b:28||5/1/1982, amended 1/12/2006|
|New Mexico||Yes||N.M.S.A 1978 § 45||1978, amended 1990|
|New York||No||NY Est. Powers & Trusts Law §§ 17-B, Art.1 to 17-B, Art. 13 (McKinney)||1966, various|
|North Carolina||No||N.C.G.S § 28A-1-1 to § 31-52||1/1/2006|
|North Dakota||Yes||N.D.C.C §§ 30.1-01-01 to 30.1-35-01||7/1/1975|
|Ohio||No||OH ST. T XXI Chs. 2101 to 2123||1975|
|Oklahoma||No||58 OKL St Ann § 1 to 1258||11/1/2001|
|Oregon||No||O.R.S.T 12, Ch. 111 to Ch. 117||1969|
|Pennsylvania||No||20 PA C.S.A §§ 3131 to 3138||11/6/2006|
|Rhode Island||No||R.I. Gen Laws 1956. T. 33 Ch. 1 to Ch. 27||1957|
|South Carolina||Yes||SC Code 1976, §§ 62-7-101 to 62-7-1106||1976|
|South Dakota||Yes||SDCL § 29A-1-101 to 29A-6-311||1995|
|Tennessee||No||TCA Titles 30 (Administration of Estates), 31 (Descent and Distribution) & 32 (Wills)||Various|
|Texas||No||TX Est § 360.001, et seo||1/1/2014|
|Utah||Yes||UCA 1953 § 75-5-101 to 75-8-101||7/1/1977|
|Vermont||No||14 VSA § 1 to § 204||1975|
|Virginia||No||VA Code Ann §§ 64.2-100 to 64.2-2704||10/1/2012|
|Washington||No||Wash Rev Code Ann §§ 11.02.001 to 11.95.900||1/1/1985, recodified under different sections, effective 1/1/2012|
|West Virginia||No||W VA Code §§ 44-1-10 to 14-16-6||Various|
|Wisconsin||No||WIS Stat Ann §§ 851 to 882||Various|
|Wyoming||No||WS 1977 §§ 2-1-101 to 2-18-106||1977|
How does the wording in the bond form impact the cost of a probate bond?
The bond form is a tri-party agreement which defines the rights and obligations of the court (obligee), surety company (obligor) and fiduciary (principal). While many bond forms use similar language, each bond form can be customized by the court requiring the specific bond and may contain provisions that increase potential costs for the surety company, which will ultimately be passed on to the fiduciary via higher bond premiums, stricter underwriting or collateral. The primary text to consider in a probate bond surrounds (1) aggregate limits, (2) cancellation provisions and (3) forfeiture clauses.
Bond forms always specify the penal sum defined as the maximum amount of financial damages any single party can recover from the bond related to a single claim occurrence. Most bond forms also contain a clause which limits the amount of financial damages from all parties and all claims to a specific amount (“aggregate limit”), usually the same amount as the penal sum. For example, a $15,000 administrator bond with an aggregate limit of $15,000 will pay out no more than $15,000, regardless of the number of damaged parties or claim occurrences. Probate bonds without an aggregate limit will be more expensive than a bond with similar coverage containing an aggregate limit.
Most bonds contain a provision allowing for the surety company to cancel the bond (“Cancellation Provision”).Cancellation provisions allow the surety company to cancel the bond for any reason, but most often due to the applicant failing to pay premiums due, claim payouts, or material changes in the applicant’s credit score. Probate bonds are non-cancellable and require a release from the requiring court in order for the estate to be closed with the surety company issuing the bond. Guardianship bonds can have especially long terms as the bond is required to be in force until the minor reaches the age of majority (18 in most states) or until the ward passes away.
Surety bond claims are paid by surety companies to damaged parties to reimburse that party for the financial loss incurred up to the bond penalty amount. Certain bonds contain a clause which requires the surety company to pay the full bond penalty to the damaged party, regardless of the actual damages incurred (“Forfeiture Clause”). Probate bonds with forfeiture clauses will be more expensive than a bond with similar coverage that does not contain the clause.