Executor probate bonds similar to insurance

An executor bond is a type of probate bond that guarantees that if an executor or an administrator of a decedent's estate fails to fulfill his or her duties as the personal representative — and harms the estate — that the estate can recover its damages against the value of the bond. A bond, therefore, is similar to, but is not the same as, insurance.

It is not the same as insurance: If a bond company pays out to the estate, the bond company can try to recover what it pays the estate by going after the personal assets of the executor or administrator. Thus, the point of a bond is to protect the decedent's beneficiaries but not to protect the administrator or executor who damaged the estate.

In California, generally, a personal representative of a decedent's probate estate is required to file a probate bond with the court before the court issues the letters of administration or letters testamentary, as relevant, authorizing the personal representative to administer the decedent's estate.

The probate bond requirement may be, and very often is, waived in the decedent's will (if a will exists). Otherwise, the bond requirement may also be waived if all the decedent's heirs are adults and they all sign waivers of bond.

Of course, a decedent's will, if relevant, may actually require a bond and prohibit a waiver. Moreover, when the personal representative is a resident of another state, the probate court may still require a small bond because the court lacks personal jurisdiction over an out of state representative.

Accordingly, a person petitioning to be appointed as the personal representative of a decedent's estate must be “bondable” unless the requirement is waived. This reality needs to be considered when a person does a will or when a person petitions to be appointed as personal representative.

Bonds are sold by private bond companies, which set their own prices and standards regarding the issuance of a bond. To be bondable, a person must usually have sufficient combination of “net worth”, “income”, “credit worthiness” and a “clean criminal record”. A person with insufficient assets and/or a bad criminal record may not be bondable. No bond company wants to take the risk of a wrongful act occurring and the personal representative having insufficient personal assets against which to recover the bond amount.

The required bond amount is determined by the total value of the estate's assets and its yearly income. The bond's annual cost (price) is determined both by the bond amount and the bond applicant's individual creditworthiness (risk). It is an annual cost and can be paid by (or reimbursed by) the estate itself. For example, if a probate bond charges 1% annually of the bond price and the amount of the estate and annual income is $500,000 combined, then the bond price for one year is $500.

The initial bond amount is based, in part, on what the bond applicant self-reports as the value of the estate's assets and its yearly income. After the probate commences, the value of the estate is determined by the probate referee and reported on the estate's inventory. The bond amount is then adjusted to the reported amount (value) of the estate.

Once a probate goes past 12 months the bond is renewed. The bond can only be discharged (terminated) when the probate court has issued an order to close the probate estate, i.e., which order is granted after all assets are distributed and the business of the probate estate is completed.

The foregoing discussion is a simplified overview and not legal advice. Consult an attorney. Dennis A. Fordham, attorney, is a State BarCertified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@ DennisFordhamLaw.com and 707-263-3235.