Avoiding Posting Bond
- What Is a Probate Bond?
- When Is a Probate Bond Required?
- Implications on a Non-Resident Personal Representative
- Probate Bond Problems
- The Amount of the Bond
- Where to Obtain a Probate Bond
What Is a Probate Bond?
A Probate Bond is in effect an insurance policy in which the bonding (ie, surety) company guarantees up to the limits of the policy that a Personal Representative (or Guardian) will administer an estate according to law. Unless:
- Decedent’s Will waives Bond, or
- Decedent’s surviving spouse is the Personal Representative and only heir, …
the Court usually requires a Personal Representative to post a Probate Bond to ensure that the estate’s creditors, heirs, and beneficiaries receive the funds or distributions to which they are entitled. One local bonding company’s premiums are as follows:
When Is a Probate Bond Not Required?
No Bond is required in any of the following circumstances (RCW 11.28.185):
- Decedent died testate and his/her Will waives Bond …”, or
- Decedent’s surviving spouse is the Personal Representative and sole taker (ie, heir or beneficiary) of the estate, or
- Decedent’s Personal Representative is a bank or trust company, or
- The Court waives Bond, which the Court:
- May do for a Washington resident Personal Representative, but
- Cannot do for a non-resident Personal Representative. RCW 11.36.010
Implications on a Non-Resident Personal Representative
According to these two statutes, a non-resident Personal Representative is required to:
- Post Bond unless he/she falls under any of the first three of the foregoing exceptions, and
- File a Designation of Resident Agent for service of process on the estate.
Probate Bond Problems
If you can’t meet any of the above criteria for avoiding a Bond, then several alternatives remain:
Obtain a Waiver of Bond from all the Heirs, Beneficiaries, Creditors, and administrative expense Claimants. Note, however, that this is not a legal exception to the Bond requirement and its only purpose is to provide support for your argument that the Court itself should waive Bond. And since RCW 11.36.010 states: “… unless bond has been waived as provided by RCW 11.28.185 [ie, the exceptions referenced above], such nonresident personal representative shall file a bond to be approved by the court.” [Emphasis added.] — this alternative would appear hopeless for a non-resident Personal Representative.
Make your best argument that the Court should waive Bond. § 1.2.5 of the 2003 KingCounty Probate & Guardianship Policy Manual provides as follows:
§ 1.2.5 Waiver by Court. The court may waive bond or other security upon a clear showing that any loss that might be suffered by:
- A creditor;
- A beneficiary of the Will;
- An heir to whom the estate would pass in the absence of a Will; or
- An administration expense claimant;
that would otherwise be covered by bond or other security, is adequately protected otherwise. The bond exists to protect all whose interests may be prejudiced by the action or inaction of the Personal Representative.
Consequently, the effectiveness of a Waiver of Bond or the success of your argument that Bond should be waived will likely depend on your showing a lack of need for a Bond, such that all the Heirs or Beneficiaries are adults and no significant creditor or estate solvency issues are present. Again, this alternative would appear hopeless for a non-resident Personal Representative.
Deposit Funds into a Blocked Account. As an alternative to posting Bond or to reduce the amount of Bond that may be required to be posted, you might deposit any significant cash or securities in what is known as a “blocked account” at a bank or brokerage. RCW 11.28.185; 2003 King County Probate Policy & Procedure Manual § 1.2.7. A blocked account is one that requires a Court Order to withdraw any of its funds. See also RCW 11.88.105
- Advantage: Deposits in blocked accounts are not subject to bonding requirements.
- Disadvantage: You will eventually need to return to Court for an Order to unblock the account and obtain its funds.
The Amount of the Bond
If you must post Bond, King County requires that:
- Its amount shall be “the sum of the value of the personal property (exclusive of cash or other securities held by a depository authorized by [RCW 11.88.105 and RCW 2003 King County Probate Policy & Procedure Manual § 1.2.3 And
- It must be presented to the Court for approval. § 1.2.4 Practically speaking, this means that the Superior Court Clerk’s Office will not accept a Bond for filing
(and won’t issue Letters if a Bond is required) without a Judge having signed the Bond.
Where to Obtain a Probate Bond
In King County, three surety companies are known to (ie, may, not will) issue Probate Bonds to the public depending upon the applicant, his/her financial status, and other factors:
Bonding companies have recently suffered increased claims in probate and guardianship estates, generally in those administered by pro se Personal Representatives and Guardians.
As a consequence, many have stopped issuing Probate Bonds to pro ses, and those that remain have become less willing to issue a Probate Bond to a pro se Personal Representative
or Guardian and have increased their requirements for doing so.