Probate refers to a legal process in which a person’s belongings are distributed upon their death. This generally occurs when that person dies without a valid will. It is important to note that the probate process is still required when a person dies with a will.
Property that is to be distributed in a probate may include real property such as land or a home, as well as personal property and non-physical assets such as bank accounts. Each state has its own probate process which determines what happens to a person’s belongings and assets if that person dies without leaving a valid will.
The probate process is generally considered to be unfavorable, due to the fact that it can result in unfavorable distribution. Additionally, the probate process can be time consuming as well as complex. Additionally, in some cases, a portion of the estate may escheat. Escheating is when a person’s property reverts back to the government. The government is allowed to claim title to a specific piece of property when there are no others who have a right to inherit or claim the property. Escheated property generally passes to the state’s government.
During the probate process, the court may appoint an executor or administrator in order to assist in the property distribution process. An executor may be required to post what’s known as a probate bond with the court. The purpose of this bond is to ensure that the executor fulfills their duties according to the state’s probate and estate laws. These duties could include:
- Properly identifying the estate property to be distributed;
- Naming potential beneficiaries; and
- Handling any remaining property debt.
Simply put, a probate bond helps to ensure that the property of the estate is protected from bad actions of the executor, such as the executor claiming the decedent’s property for themselves.
Are There Different Types of Probate Bonds? What Protection Does a Probate Bond Offer?
Probate bonds may be known by other terms. The name given to probate bonds is dependent upon who is being required to make the bond. An example of this would be if the estate involves a guardian of the estate. The probate bond may then be referred to as a guardian bond, instead of a probate bond. As such, there are other bonds such as conservator bonds, trustee bonds, administrator bonds, and the like.
A probate bond provides protection for the true heirs and beneficiaries of the estate. The bond helps to ensure that the qualified person will receive their due distribution. In most jurisdictions, the decedent’s spouse and living children are given priority in receiving distributions from the estate.
If other people attempt to obtain a distribution before the decedent’s spouse and children, the executor may step in to moderate the situation. Therefore, the probate grant provides motivation for the executor to ensure that the probate process is being followed.
Probate bonds can protect the estate’s beneficiaries against potential:
- Theft; and
- Misrepresentation by the executor of the estate.
What Happens If the Estate’s Executor Violates Their Duties?
An executor is appointed in order to ensure that the decedent’s intentions are carried out. When there is no evidence of the decedent’s intentions, such as when they do not leave a valid will and the estate is being subjected to state probate, it is up to the executor to determine what the decedent may have wanted.
Although an executor is tasked with many different duties and responsibilities, their primary duties are to pay off any estate taxes and debts, and distribute remaining assets to the appropriate beneficiaries.
If the estate has gone to probate, some additional executor duties could include:
- Hiring a probate attorney to represent the estate;
- Contacting any other relevant parties; and
- Managing certain tasks related to the probate process.
An executor may have a conflict of interest with one or more of the estate’s beneficiaries. Some common examples of such conflicts include:
- An executor attempts to buy property from the estate;
- An executor has failed to render a proper accounting of the entirety of the estate; and
- An executor is self-interested, meaning they have an interest in obtaining estate assets as a beneficiary.
If the executor violates their duties to the estate, they will generally be subject to a civil suit filed by the affected beneficiaries. An example of this would be if the executor stole some of the estate’s money for their own personal use as opposed to distributing the money to the heirs. The executor may be required to pay damages in order to reimburse the affected heirs for their losses.
In especially serious cases, the executor could even face criminal consequences. This could include a criminal fine or jail time, because estate violations often involve various types of other criminal charges such as fraudulent misrepresentation. Requiring a probate bond can help protect against these circumstances.
Do I Need an Attorney for Probate Bonds?
Probate bonds are often a standard component of the probate process, and a person may also specify in their will whether they wish a probate bond to be imposed on their executor. A skilled and knowledgeable probate attorney can assist in setting up a probate bond, as well as enforcing such a bond if you are an estate’s beneficiary.
Additionally, a probate attorney may be able to file that the probate bond be waived in certain cases. Finally should an issue arise during the probate process, an attorney can represent the estate in court as needed.