Florida Probate Statute 733.402: Bond of Fiduciary; When Required; Form

In Florida, a personal representative of an estate is charged with managing the affairs of a decedent to ensure that his (or her) property is properly cared for and to ensure that it is distributed to others in accordance with Florida estate law and the decedent’s will, if any. The job of a personal representative is not only time-consuming and at times emotional, it also involves having access to and control of personal, sensitive, and financial information of the decedent. Because of this, the probate court overseeing the probate proceeding may require bond from the personal representative to protect the estate in the event of negligence or wrongdoing on the part of the personal representative. If you would like to learn more about the process of being appointed a personal representative as well as the bond requirements, including the rules state in Florida Statutes, section 733.402- Bond of fiduciary; when required; form, contact an experienced Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates.

Because a personal representative has the role of a fiduciary with respect to the beneficiaries, under Florida Statutes, section 733.402- Bond of fiduciary; when required; form, every personal representative must file a bond with a surety. A bond is a special type of insurance policy that is carried by personal representatives, trustees, and other fiduciaries to protect estates, beneficiaries, and heirs from mistakes, negligence, or illegal acts by fiduciaries. As with any insurance policy, the insured—in this case the personal representative—must pay a premium to maintain the policy. The reason that Florida requires bonds is because of the almost unfettered access and control personal representatives have over estate assets.

• Controls estate assets. One of the first responsibilities of the personal representative is to take control over estate assets. This means that the administrator is responsible for collecting estate property, appraising it, safeguarding it, and managing it. This may mean purchasing insurance for property, making repairs, or making investment decisions. In other words, the personal representative is charged with preserving estate assets. If the personal representative is reckless or negligent in doing any of these things, the result could be a loss to the estate. If the personal representative is insured with a bond, then the surety will cover the loss, thus protecting the beneficiaries.
• Pay estate bills. The personal representative must pay estate debts and expenses. This requires that personal representative to have access to cash that is part of estate property. It also requires the personal representative to make decisions as to whether or not a debt is valid, and to make sure bills are paid as required so as to avoid penalties for late payments or non-payments. Failure of the personal representative to pay valid debts may result in personal liability on the personal representative and a suit on the bond.
• Distribution of assets. The personal representative is responsible for distributing estate assets to the appropriate beneficiaries and heirs based on the will and Florida estate law. Errors in property distribution may cause financial damage to the estate and to distributees. For example, a mistake may result in insufficient assets to distribute to all beneficiaries and heirs.

According to Florida Statutes, section 733.402- Bond of fiduciary; when required; form, there are conditions under which the bond requirement can be waived. Under Florida law, a personal representative can be a trust company, bank, or savings and loan, as long as it is authorized and qualified to exercise fiduciary powers in Florida. As a Fort Lauderdale probate lawyer will explain, if a company instead of any individual serves as personal representative, the bond requirement is waived.

The bond requirement can be waived for an individual if an interested person petitions the court requesting that the court waive the requirement. Or, the court can on its own motion waive the requirement of filing a bond.

The amount of bond varies from estate to estate, depending on factors such as:

• The value of the estate
• The relationship of the personal representative to the beneficiaries
• The amount of exempt property
• The amount of any family allowance
• The type and nature of assets
• The known creditors
• Any liens and encumbrances on the assets

To learn more about the factors that the probate court will consider in determining the amount of bond, contact an experienced probate lawyer in Fort Lauderdale.

1. Amount of bond : § 733.403, Fla. Stat.
2. Liability of surety: § 733.404, Fla. Stat.
3. Release of surety: § 733.405, Fla. Stat.
4. Bond premium allowable as expense of administration : § 733.406, Fla. Stat.

(1) Unless the bond requirement has been waived by the will or by the court, every fiduciary to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk without a service fee. The bond shall be payable to the Governor and the Governor’s successors in office, conditioned on the performance of all duties as personal representative according to law. The bond must be joint and several.

(2) No bond shall be void or invalid because of an informality in it or an informality or illegality in the appointment of the fiduciary. The bond shall have the same force as if the appointment had been legally made and the bond executed in proper form.

(3) The requirements of this section shall not apply to banks and trust companies authorized by law to act as personal representative.

(4) On petition by any interested person or on the court’s own motion, the court may waive the requirement of filing a bond, require a bond, increase or decrease the bond, or require additional surety.

If you are an interested party in a probate proceeding and you have questions about the bond requirement as described in Florida Statutes, section 733.402- Bond of fiduciary; when required; form, it is important that you discuss your concerns with an experienced probate attorney serving Fort Lauderdale. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing clients in matters related to probate, fiduciaries, estate litigation, and estate administration and understand the rules of the Florida Probate Code. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.