November 2008

The default rule for whether bond is required in a probate is fairly simple: bond is required in formal proceedings, but not required in informal proceedings.

There are, of course, exceptions. No bond is required in a formal proceeding whenever (1) the will indicates that no bond is required of the personal representative; or (2) bond waivers are filed for all the interested parties with an interest exceeding $1,000. Note that even if one of these two exceptions apply, the court can still require bond if it “determines that bond is required for the protection of interested persons.”

In informal proceedings, the most common exception to the default rule is when an interested party with an interest in excess of $1,000 files a demand for bond under §524.3-605. Keep in mind that even if an interested party initially waives bond, that party may subsequently demand bond under that section.

Given these rules, here are a few practice tips:

1) Build into your probate intake forms questions that will help you determine whether a bond will be required. This analysis should be part of your probate commencement checklist.

2) If a bond will be required, talk with your client to determine whether he or she is “bondable.” Your conversation might go like this, “A bond will be required for you to become the personal representative. Bonding companies base the premium, in part, on your creditworthiness. Is there anything in your credit history that you think will come up?” There is nothing worse than finding out your client is not bondable after you’ve already had the hearing.

3) Bonds will be required in a formal probate of an intestate estate, unless you can get bond waivers from all interested parties.

4) Check local practice, but you probably do not need to file bond waivers in informal probates (e.g. Hennepin County).

See Minn. Stat. §524.3-603 for more.

Categorized in Practice Tips and tagged as bonds, probate

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