Denise Knows Probate!
Unfortunately, when someone passes away, their possessions often go through probate to be distributed among creditors, heirs, and beneficiaries. This process involves:
Identifying and understanding the decedent's last will and testament.
Gathering their possessions and determining the valuable assets.
Settling any outstanding debts of the deceased.
Paying property and estate taxes.
Covering the expenses of a funeral ceremony.
Distributing remaining assets among beneficiaries or heirs.
A person will be assigned to manage the deceased person's estate. This will either be an executor or an administrator. The court may also require that they purchase a probate bond before filing probate.
Probate Bond In North Carolina
A probate bond is a special guarantee or you can say it is extra protection that is required by North Carolina state courts to ensure that the executor or administrator of an estate carries out their responsibilities responsibly and truthfully.
Probate bonds, protects beneficiaries and creditors from potential harm due to misconduct or negligence by the executor or administrator.
Probate bonds are issued to administrators, executors, conservators, and guardians of estates in North Carolina.
How Can Probate Bonds Help Heirs and Beneficiaries?
The executor or administrator is responsible for managing the decedent's estate and making sure the heirs and beneficiaries get what rightfully belongs to them.
If the estate is mismanaged for any reason, it may result in some type of financial harm to the heirs or beneficiaries..
If this was to happen the heirs or beneficiaries would be able to file a claim with the probate bond company and possibly be reimbursed for any financial harm caused by the executor or administrator. The executor/administrator may be held personally liable for the damages and may face fines or even jail time.
What happens If I can't afford the probate bond in NC
If you find yourself unable to afford the probate bond in North Carolina, there are a few steps you can take.
First, you may petition the court to waive the bond requirement, especially if the will explicitly states that no bond is necessary.
If that is not an option, you could also seek assistance from other beneficiaries, who may have a vested interest in the estate's prompt and secure administration.
Lastly, some bonding companies might offer payment plans or reduced rates for individuals who can demonstrate financial hardship.
Consulting with an estate planning attorney can offer you more personalized options and strategies to address your specific circumstances.
How long is a probate bond good?
A probate bond, once issued in North Carolina, remains effective until the probate process is completed and the court discharges the executor or administrator from their duties.
This duration can vary greatly, from a few months to several years, depending on the complexity of the estate and the presence of any probate litigation.
It’s crucial for executors to understand that they are responsible for maintaining the bond for the entire duration of the estate administration process. Failing to do so can lead to legal consequences and potentially delay the distribution of the estate's assets.
Additionally, if the executor or administrator wishes to resign from their duties, they must obtain a release of the bond from the court before doing so.
It’s essential to work closely with an attorney throughout this process to ensure compliance with all legal requirements and avoid any complications.
So, it is important to carefully consider the responsibilities and potential costs associated with obtaining and maintaining the probate fiduciary duties.
How to Get a Bond Waived
Creating a will with an attorney might waive the probate bond requirement, but three other options exist to avoid having to obtain a bond:
All heirs agree to waive the bond.
Settle any existing financial obligations.
Obtain court approval to be excused from obtaining a probate bond.
Fortunately, judges may agree to bypass the administrator's probate bond requirement.
This may help executors or administrators who can not afford to purchase the bond or who may not meet the credit score requirement that some bond companies require.
How Much Does a Probate Bond Cost?
The cost of a probate bond in North Carolina can vary depending on the size of the estate and the specific requirements set by the court.
Generally, the premium for a probate bond is a small percentage of the total bond amount, which correlates with the value of the estate going through probate.
It's essential to compare quotes from licensed bonding companies to get the best rate. Keep in mind, the creditworthiness of the estate executor may also influence the cost of the bond.
Engaging an estate planning attorney can provide guidance on whether a probate bond is required in your situation and assist with obtaining one at a competitive rate.
According to a surety bond company called Swiftbonds there rates are:
Bond Amount Needed Fee
<$20,000 $100-$150
$20,000-30,000 $150-$200
$30,000-50,000 $200-$300
$50,000 +0.5-0.8%
You can do a google search for probate bonds or surety bond company and speak with the company representative to find their fees
When Is a Probate Bond NOT Required?
In North Carolina, a probate bond may not be required in certain circumstances. If the decedent's will explicitly states that no bond shall be necessary, the executor may be exempt based on those wishes.
Additionally, when all beneficiaries agree in writing to waive the bond, the court may also dispense with the requirement. Alternatively, if the estate qualifies for a simplified small estate administration, which applies to estates of limited value and complexity, no bond may be needed.
According to Article 8 § 28A-8-1. No Probate bond shall be required of:
(1) A resident executor, unless the express terms of the will require a resident executor to give bond;
(2) A nonresident executor (or a resident executor who moves from this State subsequent to that executor's appointment) who has appointed a resident agent to accept service of process as provided in G.S. 28A-4-2(a) [28A-4-2(4)], when the express terms of the will excuse a nonresident executor from giving bond;
(3) A nonresident executor, when there is a resident executor named who has qualified as coexecutor unless the express terms of the will require them to give bond, or the clerk of superior court finds that such bond is necessary for the protection of the estate; or
(4) A personal representative appointed solely for the purpose of bringing an action for the wrongful death of the deceased until such time as the personal representative shall receive property into the estate of the deceased; or
(5) A personal representative that is a trust institution licensed under G.S. 53-159;
(6) A personal representative of an intestate who resides in the State of North Carolina when all of the heirs of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the personal representative from the necessity of giving bond; or
(7) A personal representative where the personal representative receives all the property of the decedent;
(8) An administrator with the will annexed who resides in the State of North Carolina when all of the devisees of the decedent are over 18 years of age and file with the clerk of superior court a written waiver instrument agreeing to relieve the administrator with the will annexed of the necessity of giving bond.
Who Receives the Probate Bond?
To qualify for a probate bond, an estate's personal representatives, executors, or administrators must demonstrate financial stability and a credible credit history.
Remember filing probate is a legal process so the person must be someone who is willing and capable to carry out the fiduciary duties and one of good faith and character.
If they can't meet these criteria, attorneys may assist by taking control of the estate account.
Should You Purchase a Probate Bond?
Probate can be a complex task to handle and the possibilities of making mistakes are high, especially if you are trying to do probate on your own.
If something goes wrong you could be held personally responsible for paying heirs, beneficiaries and creditors what rightfully belonged to them. So having a probate bond not only protects the heirs and beneficiaries, it may also protects the executor and administrator.
North Carolina Probate Solutions
If you have further questions about the probate process or purchasing a probate bond feel free to reach out to me. Also if you have real estate that you need to sell contact me and let's discuss the best options for you.
Denise Harper Davis
252-902-9006
EXP Realtor | Certified Probate Real Estate Specialist
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