Giuliana V. Brockway
As Principal of Brockway Law in Santa Rosa, California, my practice includes estate planning, wills and trusts, trust and estate litigation, trust and estate administration and probate matters.
A probate bond is a type of surety bond that is a financial guarantee by a professional surety bond company. The probate bond ensures that the personal representative faithfully carries out his, her, or their fiduciary duties in the probate without taking advantage of their appointment.
The bond protects the state, heirs, beneficiaries, and creditors from fraud, embezzlement, or misrepresentation by the personal representative. It gives these people and institutions the security in the form of a promise by the surety to cover any court-ordered surcharge against the personal representative for the representative’s breach of trust. The bond is signed by both the personal representative and the surety, making both jointly and severally liable.
Unless bond is waived by the probate court, every person appointed as a personal representative must give a bond approved by the court before letters testamentary are issued. If there is more than one personal representative, the court may require that each file a separate bond or that all representatives file a joint and several bond.
A bond cannot be waived if the terms of a Last Will and Testament require a bond. A Last Will and Testament can also waive the requirement of a bond. In an intestate probate proceeding, a bond is not required when all beneficiaries waive in writing the requirement of a bond and the written waivers are attached to the petition for appointment of a personal representative.
The bond is obtained when the personal representative applies for a probate bond with a surety company. The surety company’s application process will evaluate the personal representative’s finances, to ensure that the proposed personal representative is financially responsible and unlikely to misappropriate estate funds. If the proposed personal representative has bad credit or has filed bankruptcy in the past, he, she or they may not be bondable.
Give Brockway Law a call if you have any questions.
Disclaimer: The information contained in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.