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Estate Bond - Bond Surety

Estate Bonds

 

What is an Estate Bond?

An Estate bond / Fiduciary bond / Probate bond is a financial instrument required by the court in order to guarantee the court assigned fiduciary or executors will be honest, faithful and disciplined in performing his/her duties to administer the estates of the deceased/incompetent person and minors for whom they are duty-bound to act on behalf of. Some of the responsibilities of the executor are filing tax returns, liquidating assets, providing financial recommendations, etc.
The bond states, if the executor fails to perform the duties as agreed, then he/she would be liable to pay the entire bond amount. The bond application is always concluded in the city/province/country where the duties are to be carried out. All applications are then analyzed by a judge to verify if all conditions have been satisfied.

The primary types of Estate Bonds are:

Others:

 

The primary Types of Estate Bonds are:

 

1) Administration Bonds (also known as an Executor bond):

Required when no will exists or will cannot be located. The bond covers dedicated execution of the obligation of the trustee named in a will – testamentary trustee or spreads enduring execution of obligation by delegated trustee in bankruptcy matters. In short, the purpose of an Administration Bond is to protect the creditors and lawful heirs of the estate.

Types of Administration Bonds:

a) Administration with will annexed – Required when executor named in the will or those appointed are deceased or refuse to act as administrator(s) of the estate.

b) Administration de bonis non – Required when the named executor in the will dies, resigns or is removed before completing the estate.

c) Administration pendent lite – Bond is required when will is being contested.

Administration Bonds may be requested for the following reasons:

  • Deceased did intestate (without a will)
  • Executor named in the Will is unable/unwilling to act as Executor Litigation
  • Beneficiaries include minor children
  • Executor named in the Will is a non-resident of Ontario
 
 

2) Guardianship Bonds:

Required by the office of the Public Guardian and trustee or the court.

  • A guardianship bond guarantees a court that an individual assigned to serve as a guardian will perform his/her obligations as required by law. It is a certification of execution. Certain circumstances oblige courts to select a “Nominee” to deal with the funds of a person who can't deal with his or her own finances, for example, a minor youngster, an elderly individual or an incapacitated individual or when there is no living power of attorney. This bond secures the funds or resources of the individual who is the subject of the guardianship ( under Substitute and Decision Act)
 
 

3) Foreign Executor Bonds:

Bond is required when the executor(s) named in the Will resides outside the province or Canada.

 
 

4) Trustee in Bankruptcy Bonds:

Trustee in Bankruptcy Bonds are required by the court appointed Trustee in Bankruptcy.

  • The bond guarantees the trustees’ compliance with the Bankruptcy Act. It also ensures that the debt/creditors of the estate will be treated in an equal and fair manner as prescribed by the laws governing bankruptcy.
 
 

5) Executor Bond:

Executor Bonds are mandated by the court in order to provide assurance that the executor of an estate correctly allocates the assets for an incapacitated or deceased person with whom they have been assigned fiduciary duty.

  • In other words, Executor Bonds are directed by the court in order to guarantee the honest accounting and faithful performance of duties by a fiduciary or trustee. Executor Bonds provide assurance that the executor of an estate appropriately handles, and distributes, the assets of the disabled or deceased person whom they are duty-bound to act on behalf of.
 

Others (not part of Estate Act):

 

6) Waiver of Probate:

Required typically by financial institutions or private companies in lieu of probating estate. Mostly these bonds are required to transfer assets like stocks, investment funds on the name of beneficiary of estate without the need to acquire probate letter. The waiver of probate bond is inexpensive and less time consuming as compared to probate bonds.

 
 

7) Missing Beneficiary Bond:

When there is no Will and known beneficiaries of an estate, the Public Trustee is designated as Guardian as well as Trustee by the court in Ontario. This bond is required by the Public Guardian’s office when they find “Known” heir/beneficiary of the estate.

 

When is Estate bond required?

  • Estate bonds are required by court and the public Guardian’s office to protect estate creditors, beneficiaries and in the case of guardianship, the minor and the incapacitated.
  • When a person becomes an Estate Trustee of a deceased person's estate, unless otherwise provided by law, they are required to provide an Administration Bond to the court as security. The bond is required to guarantee that the Estate Trustee will faithfully fulfil their duties.
  • The Estate Trustee must act with honesty and diligence in the discharge of their duties. These duties include preparing an inventory of the estate, collecting the assets of the estate, paying the debts of the estate, obtaining a Final Clearance of Income Tax, and distributing the property of the estate according to law.
  • The fiduciary is an important figure and the nominee and should be one of the highest integrity who is, above all else, dedicated and trustworthy. The fiduciary role is complex and requires managing a sheer volume of tasks.
 

How to apply for Estate bonds?

Applying for an estate bond can be confusing and overwhelming. To help you go through the application process, we have created a list of the documentation you may need. The licensed Surety will provide the Applicant/Court with a bond subject to receipt and satisfactory review of the following documentation:

  • Completed Fiduciary Bond application and Indemnity Agreement
  • Copy of court application
  • Copy of Will(if applicable)
  • Copy of Personal Net Worth Statement
  • Copy of Renunciation and Nomination(if applicable)
  • Copy of Beneficiary consents (if applicable)
  • Copy of Death Certificate (if Intestate)

*Other information may be required depending on the estate size and complexity.

Given the size and circumstances of the estate, costs of the estate bonds will vary from Surety Company to Surety Company.
Applications and forms can be requested by email:
surety@bondsurety.ca

 

How to apply for Waiver of Probate Bond?

  • Completed bond application
  • Copy of Will(if applicable)
  • Copy of Genealogy
  • Summary of heir tracer findings
 

How to cancel an Estate/Guardian Bond?

  • In most cases, Estate/Guardian bonds will only be cancelled when a court order is submitted to the surety.
  • *In certain circumstances, the surety will accept a “Release” from the executor(s) and beneficiaries.
  • Submit/File a final accounting with the court to get the bond released.
  • In the case of a Guardian bond, the guardian must file the death certificate and a final accounting with the public guardian’s office who will review and release the bond, thus ending the surety obligation.
 
 

Frequently Asked Questions:

Estate Statutes and Regulations:

1) What is meant by Intestacy?

  • Intestacy is when a person dies without a will.

2) Define preferential share

  • Preferential share is the amount prescribed by a regulation made under the lieutenant Governor.

3) A. Intestacy where spouse and no issue (children), who and what portion is entitled to the Estate?

  • When a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse is entitled to the property absolutely.

B. Spouse and 1 child?

  • When a person dies intestate in respect of property and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the property.

C. Spouse and 2 children?

  • When a person dies intestate in respect of property and leaves a spouse and more than one child, the spouse is entitled to one-third of the residue of the property.

D. Children only?

  • When a person dies intestate in respect of property and leaves children surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her children who are the nearest degree in which there are children surviving him or her.

4) According to “Heirship” in what order do the surviving heirs of an Estate follow?

Heirship:

  • Spouse
  • Biological Children
  • Share of predeceasing child
  • Parents
  • Brother and sisters
  • Nephews and nieces
  • Next of kin
  • Escheat
  • Degree of kindred
  • Descendants conceived but unborn

5) Define Participant

  • Participant means a person who is entitled to designate another person to receive a benefit payable under a plan on the participant’s death.

6) Define Beneficiary

  • Beneficiary is a person entitled to a portion of an Estate.

7) Who determines preferential share?

  • The lieutenant Governor in council may be regulation, prescribe the amount of the preferential share.

8) Define the following:

A. Cohabit

  • Cohabit means to live together in a conjugal relationship, whether within or outside marriage.

B. Dependent

  • Dependent means the spouse or same-sex partner of the deceased, a parent of the decreased, and a child of the deceased or a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

C. Same-sex partner

  • Same-sex partner means either of two persons of the same sex who have cohabited continuously for a period of not less than 3 years or in a relationship of some permanence, if they are natural or adoptive parents of a child.

D. Spouse

  • Spouse means a person of the opposite sex to whom the person is married or with whom the person is living in a conjugal relationship outside marriage, if the two persons have cohabited for at least one year, are together the parents of a child or have together entered into a cohabitation agreement under the family law act.

9) In Ontario when is one considered common law under the family law act?

  • In Ontario you are considered common law if the two persons have cohabited for at least one year together.

10) What is a certificate of Appointment of Estate Trustee with a Will or without a Will?

  • Certificate of Appointment Estate Trustee with a Will or without a Will was formerly known as letters probate, this document is issued by the court giving the Estate Trustee(s) named in the Will the power to administer the estate under the Will. Also formerly known as Letters of Administration, this document is issued by the court giving the Estate Trustee(s) the power to administer according to the applicable Laws, the Estate of a person who died without leaving a Will.

11) What is a holographic Will and is it valid?

  • A Holographic Will is a hand written document that speaks about the distribution of a person’s Estate.

12) Define Testate

  • Testate means when a person dies with a Will.

13) Define probate or letters of Administration

  • Probate of letters of Administration is authority granted to someone by the court to administer an Estate.
 
 

Applying For An Estate Bond? Have Questions?

Contact our surety experts at 1-877-213-4545 or surety@bondsurety.ca

Ai Surety Bonding – Affinity Insurance Inc. is the market leader in Canada for surety and related products. Our surety experts have the knowledge and expertise in delivering Fiduciary, Customs and Excise, License and Permit and Lost Instrument bonds.

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