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Probate Bonds - The Basics

A fiduciary is a person who manages the affairs and funds of another who is otherwise in a position of trust. A probate bond guarantees that the fiduciary will fulfill the duties he assumes by accepting the position.

A probate bond is required in connection with the estates of deceased persons, incompetents, and minors. It guarantees an honest accounting and faithful performance of duties. A fiduciary's duty is to handle the affairs of an estate in a legally prescribed manner. The fiduciary must not engage in any risky, unprofitable operations or investments. Some states have a list of the kinds of investments that can legally be made.

An Administrator is a fiduciary that the court appoints to conduct the affairs of an estate of someone who has died without a will. He assumes control of the descendant's  property, collects debts owed to the estate, and preserves assets to be distributed as directed by the court.

If there is a will, the will names an Executor to perform these duties.

An Administrator or Executor is responsible for paying any debts owed by the estate, including any funeral costs. He must also pay federal , state, and local taxes owed by the estate.

A Guardian bond protects a person deemed incapacitated by the court to ensure the guardian does not mismanage or embezzle from the ward's estate.

Generally, a Guardian of Minor administers the estate of a minor or preserves the rights and assets of a minor who is involved in litigation.

A person who takes charge of an adult incompetent's estate is also called a Guardian.

Guardian bonds generally remain in force for a longer period than Administrator bonds or Executor bonds. The Guardian must handle the affairs of the incompetent or minor, while the administrator only liquidates the estate of the deceased.

Another bond that is very similar to a Guardian of Incompetent bond is a Legal Custodian bond required by the Department of Veterans Affairs. The primary function of the Legal Custodian is to manage the money of the ward that is received from the Department of Veterans Affairs. The Legal Custodian must keep the funds in a separate account and file annual accounting's with the Department of Veterans Affairs.

Relatives of the deceased or incapacitated person are typically appointed as the fiduciary. If there is no willing party to serve, a public or private fiduciary will be appointed by the court.

Qualifying for a fiduciary bond is largely determined by the fiduciary's experience, credit history, and personal background.

Bonds of this type do not contain a cancellation provision. The bond is terminated when the fiduciary has completed the handling of the estate, filed a Final Accounting, and has been discharged by a court order.

Any person who has provided services to three or more wards as their guardian is considered a Professional Guardian. Usually a public guardianship is for incapacitated persons who lack a willing or qualified family member or friend to act as guardian.