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Contact the Woodlands probate attorney who has experience in assisting clients in obtaining a probate bond.
What is a
probate bond, and when would I need one?
A probate bond is a bond issued on the performance of an administrator
or executor, and its purpose is to protect heirs and creditors from being
harmed by the negligence or malfeasance of the administrator or executor.
For instance, if "John" is the executor of his father's estate,
and, instead of paying the doctor bills and splitting his inheritance
with his brother he makes off with everything his father owned, his brother
and the doctors can recover the amounts they would have been entitled
to from the bonding company. Sounds good, right? The only problem is that
obtaining the bond can be a costly stumbling block for potential executors
or administrators. (An executor means there is a will, otherwise you have
I have seen more than one case where the administrator or executor was
simply unable to obtain a bond. Why wouldn't you be able to get a
bond? Well, applying for a bond is much like applying for a signature
loan. If you need a $500,000 bond, but recently got turned down for a
$250,000 house loan, you are probably not going to have much luck. Another
reason you may not be able to get a bond is the cost of it. If the Judge
has ordered a probate bond, you are not going to have access to the funds
of the estate until AFTER the bond has been issued. The bond cannot be
issued until after it has been paid for. Of course, if paying for the
bond is a real issue, you probably wouldn't be able to qualify for
one anyway. In addition, the bond must be renewed, and new premiums are
paid every year, meaning that the executor or administrator frequently
feels pressure to wrap things up as quickly as possible. Also, even if
you qualify for a probate bond, getting one often takes some time. Again,
compare it to taking out a loan.
For all the reasons listed above, most
attorney-drafted wills waive the requirement of a bond. If the will states that there is no bond
required, and the named executor is the one submitting the will to probate,
there will be no bond required. But what if a) there is no will; b) the
named executor is not the one probating the will; or c) the will does
not waive bond? Then whether or not you will be required to post a bond
depends on three things:
- the agreement of all of the heirs,
- the existence of debts,
- and the Judge you are in front of.
If all of the heirs agree to waive the bond, and there are no unsecured
debts of the estate, the Court will agree to waive the bond. If all of
the heirs are in agreement, and there are unsecured debts of the estate,
I have never had a Harris County Judge order a bond, and I have never
had a Montgomery County Judge not order a bond.
I recently debated the issue of the bond with Judge Winfree, of Montgomery
County (now retired) at great length, and he succeeded in convincing me
that the legislature assumed there would be a bond required anytime there
were debts, but he did not succeed in convincing me that it is a requirement
of the Probate Code. But he doesn't have to convince me, I have to
convince him, and I, like every other probate attorney practicing in Montgomery
county, failed to convince him. He did agree that if the creditors would
waive the bond, then he would as well. I got the agreement of the creditors
and, in a very minute way, made a bit of history by securing the very
first waiver of an administrator's bond in Montgomery county where
the estate has substancial unsecured debts.
If you don't have the agreement of all the heirs, and the
will does not waive a bond, or the named executor is not the one probating
the will, any judge will require a bond. The amount o the bond is based
on either the value of the esate, or if the heris are in agreement, the
amount of unsecured debt.