To waive bond or not to waive bond that is the question! In most, but certainly not all, California probate cases we seek to waive the requirement of a surety bond. However, in some cases we simply can not. That is either because all the heirs or beneficiaries won’t agree to waive the requirement or because the Court requires it. The most likely reason the Judge would require a bond to be posted is if the Administrator or Executor is an out of state resident. In those cases where bond may be required we sometimes consider alternatives like putting money in Court Ordered Blocked Accounts and in other cases we just post the bond.
Getting a bond is certainly not difficult as long as the applicant’s credit is good. We generally use Bond Services of California for our client’s bonding needs but there are other reputable bond companies available. We give them the completed bond application and bond and they issue the bond. We then file the bond with the Court and then Letters can issue.
The exact order of events is:
– Bond application filed with bonding company;
– Court orders bond in a specific amount;
– Bond in that specific amount is issued and filed with Court;
– Letters are issued.
The relevant probate code sections are below. Contact me with questions about probate bonds or other California trust and estate issues. -John
8480. (a) Except as otherwise provided by statute, every person
appointed as personal representative shall, before letters are
issued, give a bond approved by the court. If two or more persons are
appointed, the court may require either a separate bond from each or
a joint and several bond. If a joint bond is furnished, the
liability on the bond is joint and several.
(b) The bond shall be for the benefit of interested persons and
shall be conditioned on the personal representative’s faithful
execution of the duties of the office according to law.
(c) If the person appointed as personal representative fails to
give the required bond, letters shall not be issued. If the person
appointed as personal representative fails to give a new, additional,
or supplemental bond, or to substitute a sufficient surety, under
court order, the person may be removed from office.
8481. (a) A bond is not required in either of the following cases:
(1) The will waives the requirement of a bond.
(2) 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. This paragraph does not apply if the
will requires a bond.
(b) Notwithstanding the waiver of a bond by a will or by all the
beneficiaries, on petition of any interested person or on its own
motion, the court may for good cause require that a bond be given,
either before or after issuance of letters.
8482. (a) The court in its discretion may fix the amount of the
bond, but the amount of the bond shall be not more than the sum of:
(1) The estimated value of the personal property.
(2) The probable annual gross income of the estate.
(3) If independent administration is granted as to real property,
the estimated value of the decedent’s interest in the real property.
(b) Notwithstanding subdivision (a), if the bond is given by an
admitted surety insurer, the court may establish a fixed minimum
amount for the bond, based on the minimum premium required by the
admitted surety insurer.
(c) If the bond is given by personal sureties, the amount of the
bond shall be twice the amount fixed by the court under subdivision
(d) Before confirming a sale of real property the court shall
require such additional bond as may be proper, not exceeding the
maximum requirements of this section, treating the expected proceeds
of the sale as personal property.
8483. (a) This section applies where property in the estate has
been deposited pursuant to Chapter 3 (commencing with Section 9700)
of Part 5 on condition that the property, including any earnings
thereon, will not be withdrawn except on authorization of the court.
(b) In a proceeding to determine the amount of the bond of the
personal representative (whether at the time of appointment or
subsequently), on production of a receipt showing the deposit of
property of the estate in the manner described in subdivision (a),
the court may order that the property shall not be withdrawn except
on authorization of the court and may, in its discretion, do either
of the following:
(1) Exclude the property in determining the amount of the required
bond or reduce the amount of the bond to an amount the court
determines is reasonable.
(2) If a bond has already been given or the amount fixed, reduce
the amount to an amount the court determines is reasonable.
8484. If a personal representative petitions to have the amount of
the bond reduced, the petition shall include an affidavit setting
forth the condition of the estate and notice of hearing shall be
given as provided in Section 1220.
8485. A personal representative who petitions for substitution or
release of a surety shall file with the petition an account in the
form provided in Section 10900. The court shall not order a
substitution or release unless the account is approved.
8486. The personal representative shall be allowed the reasonable
cost of the bond for every year it remains in force.
8487. The provisions of the Bond and Undertaking Law (Chapter 2
(commencing with Section 995.010) of Title 14 of Part 2 of the Code
of Civil Procedure) apply to a bond given under this division, except
to the extent this division is inconsistent.
8488. (a) In case of a breach of a condition of the bond, an action
may be brought against the sureties on the bond for the use and
benefit of the decedent’s estate or of any person interested in the
(b) No action may be maintained against the sureties on the bond
of the personal representative unless commenced within four years
from the discharge or removal of the personal representative or
within four years from the date the order surcharging the personal
representative becomes final, whichever is later.
(c) In any case, and notwithstanding subdivision (c) of Section
7250, no action may be maintained against the sureties on the bond
unless commenced within six years from the date the judgment under
Section 7250 or the later of the orders under subdivision (b) of this
section becomes final.