This blog series explores the problems and complexities that may occur when someone dies without a Will. My first blog post discusses the process for appointing an estate Administrator. The second post addresses the authority that an Administrator may or may not have. In this post, I will explore the circumstances under which the Administrator may be required by the court to furnish bond in order to serve.
If a bond is required by the court, the person seeking to become the Personal Representative will need to file an application with a bonding (i.e. surety) company, and that company will guarantee, up to the bond limits as required by the court, that the Personal Representative will fulfill her fiduciary duty pursuant to the law. If the application is approved and the bond is issued by the bonding company, generally speaking, the bond can be filed with the court so that the applicant will then be confirmed to serve as Personal Representative.
Generally, a Will that is prepared by an attorney will state that the Personal Representative shall serve without bond. However, if there’s no Will, then there’s no magic language to that effect. Washington courts often require estate Administrators to furnish bond in order to ensure that the estate’s assets are adequately protected. So if, for example, the Administrator improperly takes estate assets or incompetently manages the estate so that it loses value, then the heirs can recover from the bond and be made whole.
When will the court require a bond? RCW 11.28.185 sets for the basic rule, stating:
Bond or other security of personal representative—When not required—Waiver—Corporate trustee—Additional bond—Reduction—Other security.
When the terms of the decedent’s will manifest an intent that the personal representative appointed to administer the estate shall not be required to furnish bond or other security, or when the personal representative is the surviving spouse or surviving domestic partner of the decedent and it appears to the court that the entire estate, after provision for expenses and claims of creditors, will be distributable to such spouse or surviving domestic partner, then such personal representative shall not be required to give bond or other security as a condition of appointment. In all cases where a bank or trust company authorized to act as personal representative is appointed as personal representative, no bond shall be required. In all other cases, unless waived by the court, the personal representative shall give such bond or other security, in such amount and with such surety or sureties, as the court may direct.
Every person required to furnish bond must, before receiving letters testamentary or of administration, execute a bond to the state of Washington conditioned that the personal representative shall faithfully execute the duty of the trust according to law.
The court may at any time after appointment of the personal representative require said personal representative to give a bond or additional bond, the same to be conditioned and to be approved as provided in this section; or the court may allow a reduction of the bond upon a proper showing.
In lieu of bond, the court may in its discretion, substitute other security or financial arrangements, such as provided under RCW 11.88.105, or as the court may deem adequate to protect the assets of the estate.
How does this work in practice? Suppose Molly and Paul have been married for two years. It is a second marriage for both of them. Paul has two adult children from his prior marriage. Paul dies intestate, without a Will. Molly, through her attorney of record, petitions the court to become the Administrator of Paul’s estate. Since Molly and Paul were only married for two years, most of Paul’s assets are his separate property rather than community property, and a portion of those separate property assets will be distributed to his children. Since Molly will not receive Paul’s entire estate, in all likelihood, the court will require Molly to furnish proof of obtaining a bond before issuing the Letters of Administration granting Molly the authority to serve. The amount of the bond will depend on the estimated value of Paul’s assets. All of this hassle and expense could have likely been avoided if Paul would have worked with an attorney to prepare a Will, and that Will would have nominated Molly to serve as Personal Representative without bond.
The moral to this story? Once again, the benefits of having a properly drafted Will can far outweigh the expense and time involved.
Read the next post in the series here.
Photo: Tim Pierce on Flickr
This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.