Surety Bonds in Florida Probate: When Are They Required, and Can They Be Waived

Most people planning an estate spend their time thinking about who gets what. Almost nobody thinks about the surety bond their personal representative might have to buy before they can do anything at all. But that bond, an insurance policy of sorts that protects the estate from a personal representative who mismanages it, can become an unexpected cost and an unexpected delay in a Florida probate case. Understanding when a bond is required, and when it is not, can save real time and real money.

What a Probate Bond Actually Does

A probate bond, sometimes called a fiduciary bond, is not insurance for the personal representative. It is protection for everyone else. If a personal representative steals from the estate, mismanages assets, or fails to follow the will or the law, the bond gives beneficiaries and creditors a source of recovery beyond just suing the individual, who may have no money left to pay a judgment.

Under Florida law, unless the bond has been waived by the will or by the court, every personal representative who receives letters of administration must file a bond with an approved surety. The bond must be payable to the Governor of Florida, and it guarantees that the personal representative will carry out all of the legal duties of the position. This requirement comes from a specific Florida statute, not from courthouse tradition, so it applies uniformly across the state, though individual circuits and judges do have some discretion in how strictly they apply it.

When Bonds Are Typically Required

The default rule sounds strict: a bond is required unless something excuses it. In practice, whether an actual case ends up needing a bond depends on several things. Courts consider the size and nature of the estate, whether there are minor or unascertained beneficiaries, whether creditors have raised concerns, whether the personal representative lives out of state, and whether family members are already at odds with one another.

There is one built in exception. Banks and trust companies that are legally authorized to act as personal representatives in Florida are not required to post bond. The idea is that these institutions already operate under regulatory oversight, so an additional bond does not add meaningful protection. Individual personal representatives, even close family members acting in good faith, do not get this same exemption automatically.

Can the Bond Be Waived?

Yes, and this is where most families interact with the bond requirement. A will can waive the bond outright. Many wills, especially ones drafted with the help of an attorney, include a sentence stating that the named personal representative shall serve without bond. This is one of the most common and easiest ways to avoid the requirement.

Even if a will is silent, or if there is no will at all, the personal representative can ask the court to waive the bond, and the court can waive it on its own initiative as well. However, courts are not required to honor a waiver written into the will. A judge can still order a bond even after a will expressly waives it, if circumstances make that necessary to protect the estate. This might happen if beneficiaries object, if the estate is unusually large or complicated, or if there is a legitimate concern about how the personal representative will handle the assets.

Why This Matters Before Someone Passes Away

If you are drafting a will, deciding whether to include a bond waiver is not just paperwork. It is a decision about how much friction your chosen personal representative will face after you are gone, and how much of the estate’s value might get spent on bond premiums instead of going to your beneficiaries. If you are currently serving as a personal representative and were not told whether a bond is required, that is a question worth asking early, since sorting it out after the fact can slow down the entire administration.

Our West Palm Beach probate attorneys can review a will, evaluate whether a bond will likely be required in a specific case, and if necessary, petition the court for a waiver. Whether you are planning ahead or already navigating an open estate, getting clarity on the bond question early keeps the process moving. Don’t hesitate to reach out to the office of Larry Bray for support.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.402.html