Probate Bonds for Administrators in Massachusetts: When the Court Requires One and How a Waiver Works

Detailed Answer

In Massachusetts, a personal representative appointed to administer an intestate estate (an estate where the decedent left no will) will usually be required to provide a probate bond (also called a fiduciary bond or surety bond) unless the court orders otherwise. A bond protects the estate and its beneficiaries by providing a financial guarantee that the personal representative will properly collect, preserve and distribute estate assets and account to the court.

How the bond requirement works in practice:

Who normally must post a bond: The Probate and Family Court ordinarily requires a bond from a person appointed as administrator unless the will waives bond (for testate estates) or the court accepts a waiver by interested persons for an intestate estate.
Amount of the bond: The court decides the amount based on the likely value of assets the administrator will handle. The judge can set the bond higher or lower than a petitioner requests depending on estate complexity and risk.
Form of the bond: A bond is typically obtained from a surety company or bonding agency. In some cases, the court may accept other security (such as a pledge of assets) instead of a surety bond.
When the court may allow waiver: If every interested person entitled to receive property signs a written waiver (sometimes called a consent to appointment without surety), the court can accept that waiver and appoint the administrator without a bond. The probate clerk must have the signed waiver(s) on file before issuing letters of administration without surety.
Court discretion remains: Even if everyone signs waivers, the judge may still require a bond if the judge has concerns about the administrator’s fitness, the estate’s complexity, creditor claims, potential disputes, or if key heirs are minors or incapacitated.
Small estates and simplified procedures: Massachusetts has procedures that may reduce the need for formal administration when assets are small or title can transfer by affidavit, but eligibility and forms vary. The Probate Court or statutory provisions govern those exceptions.

Practical example (hypothetical): Jane dies without a will. Her three adult children agree that the sibling with the time and skills should serve as administrator and all three sign a written waiver of bond consenting to appointment without surety. They file the waiver with the Probate Court when petitioning for appointment. The judge reviews the petition and the waivers, confirms there are no creditor or other issues, and issues letters of administration without requiring a bond. If, however, a creditor files a claim or the court is concerned about cash on hand or missing assets, the judge can require a bond despite the waiver.

Where to look in Massachusetts law and court resources: The Probate Code and local Probate and Family Court rules govern the appointment of personal representatives and the court’s authority to require or waive bonds. For the general statutory framework see the Massachusetts Probate Code (Chapter 190B of the General Laws) and consult the Probate and Family Court pages and forms on Mass.gov for local practice and required forms:

Because courts have discretion, and local Probate Court practices vary, filing the correct waiver form and having everything in order (estate inventory, list of heirs, notices to creditors if required) increases the chance the court will accept a waiver and dispense with bond. If the court requires a bond, compare surety companies for the best premium and confirm the court’s required bond amount before purchasing a bond.

Bottom line: A bond is usually required for administrators in Massachusetts, but all interested persons can sign and file a written waiver so the court may appoint an administrator without a bond. The judge can nonetheless require a bond if circumstances warrant. Consult the Probate and Family Court clerk or a probate lawyer if you are unsure how to proceed or if the estate has complicating factors.

Helpful Hints

Before you file: Call the local Probate and Family Court clerk and ask which waiver or consent form the court prefers and what information to include.
Get written, signed waivers: Obtain signed, dated waivers from every person who would inherit (or is otherwise an interested party) and file them with the petition for appointment.
Expect judicial discretion: Even unanimous waivers may not prevent the judge from requiring a bond if the estate has high risk factors (cash, business interests, out-of-state property, pending litigation, or disputes among heirs).
Compare surety costs: If a bond is required, contact several licensed surety companies for premium quotes; sometimes local agents offer competitive rates for estate bonds.
Consider alternate security: Ask the court whether it will accept other security (such as a pledge of assets) in place of a surety bond; courts sometimes accept alternatives in appropriate cases.
Watch deadlines and notices: Filing waivers and petitions properly keeps the process moving. Missing notices to creditors or required filings can generate problems later and may prompt the court to insist on a bond.
When in doubt, get help: If the estate has complexity (real estate, business interests, potential creditor claims, or family disputes), consult an attorney experienced in Massachusetts probate to avoid mistakes that can cost time and money.

Important disclaimer: This article is for general informational purposes only and does not offer legal advice. Laws and court practices change and vary by court. For advice about a specific estate in Massachusetts, consult a licensed Massachusetts attorney or the local Probate and Family Court.