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Bonds and sureties in Massachusetts probate process?

Submitted by RickG55 on Sat, 11/26/2011 - 14:12
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I'm named in my mother's will as the person she would like as her executor. She's ill and I'm getting nervous about the whole probate process and how I'll handle it when she passes. I have several brothers and do not get along with one of them. As you suggested, I've been looking through the new Massachusetts Probate Code but I'm wondering if you can explain a little about bonds and whether I need sureties? Thanks.

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Bonds and Sureties in MA probate of will

Submitted by The Editor on Sat, 11/26/2011 - 16:59.

Under the old Massachusetts probate system and the new probate system taking effect on January 2, 2012, before she can be appointed, the personal representative of an estate must file a bond with the probate court, essentially a contractual promise to the court and to the devisee, heirs, etc., that she will distribute the estate as directed by the will and honor her fiduciary duties (will not do things like taking money from the estate for improper purposes or personal use). 

A surety is like a guarantor, a person or a corporate entity, who promises, for a fee in some cases, to make good on the personal representative's bond.  Under Massachusetts General Laws Chapter 190B, Sections 3-601 and 3-603, sureties are required on the bond unless:

(1) The will in question waives the requirement of sureties; (2) All the heirs, in cases were no will has been probated (intestate), or all of the devisees named in the will file a written waiver of sureties; (3) The personal representative named in the will is a bank or qualified trust company; or (4) The probate court determines that sureties are not in the best interest of the estate.

In some cases, even if one of the above exceptions is met, sureties may be required. The probate court, on its own motion, may require sureties or demand additional sureties in any formal proceeding (as opposed to the new informal probate proceedings).  Also, an individual or creditor who claims to have an interest in the estate in excess of $5,000 may demand that the personal representative obtain sureties. 

So, a couple of thoughts for you.  Wills very often waive the requirement of obtaining sureties.  Assuming your mother's will follows that norm, it will make your life a little easier.  Also, if you are uncomfortable in your prospective role as personal representative, of if you would be more comfortable with a bit of help, a personal representative can hire a probate attorney to advise her.   Hiring a lawyer makes even more sense with large or complex estates.  Typically, the estate will pay for the costs of hiring advisers for the personal representative.  Hope all this helps.  Good luck.

 

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