If you are involved in a probate matter in Illinois or Missouri, you will likely encounter the terms “oath” and “bond.” These are foundational requirements in the probate process that every executor or administrator must understand before they can begin managing a deceased person’s estate.
What Is the Oath in Probate?
The oath in probate is a formal, sworn statement made by the person appointed to manage the deceased person’s estate. This person is called the executor (if named in a will) or the administrator (if there is no will or the named executor cannot serve). By taking the oath, the representative formally accepts their fiduciary duties, which include:
- Identifying, collecting, and safeguarding estate assets
- Paying valid debts, taxes, and expenses of the estate
- Distributing remaining assets to beneficiaries according to the will or state intestacy laws
- Acting in the best interests of the estate and its beneficiaries at all times
- Providing an accounting to the court and beneficiaries
The oath is typically taken before a court clerk or judge and is filed with the probate court as part of the appointment process.
What Is the Probate Bond?
A probate bond (sometimes called a fiduciary bond or executor bond) is a type of surety bond that provides financial protection for the estate’s beneficiaries and creditors. The bond serves as a guarantee that the executor or administrator will perform their duties faithfully and in compliance with the law.
If the executor or administrator mismanages the estate, commits fraud, or fails to distribute assets properly, the beneficiaries or creditors can make a claim against the bond to recover their losses. The surety company that issued the bond will pay the claim up to the bond amount, and then seek reimbursement from the executor or administrator.
Probate Bond Requirements in Illinois
Under the Illinois Probate Act (755 ILCS 5/12-5), the court generally requires the executor or administrator to post a bond before they can receive letters of office (the legal authority to act on behalf of the estate). The bond amount is typically set at the estimated value of the personal property in the estate plus the estimated annual income of the estate.
However, there are several situations where the bond may be waived in Illinois:
- Will waiver: If the decedent’s will explicitly waives the bond requirement, the court will generally honor that provision.
- Beneficiary consent: If all beneficiaries are adults with legal capacity and they unanimously agree to waive the bond, the court may grant the waiver.
- Independent administration: In cases where independent administration is granted under 755 ILCS 5/28-1, the bond requirements may differ from supervised administration.
- Small estates: For estates that qualify for small estate affidavit procedures, a formal bond may not be required.
Probate Bond Requirements in Missouri
Missouri probate law also requires executors and administrators to post a bond, unless the requirement is waived. Under RSMo 473.157, the court sets the bond amount based on the estimated value of the estate’s personal property. Missouri allows the bond requirement to be waived if:
- The will specifically directs that no bond is required
- All interested parties consent to waiving the bond
- The court determines that a bond is not necessary to protect the estate
In Missouri, the court may also require an increased bond if circumstances suggest a heightened risk of mismanagement, such as when there is conflict among beneficiaries or concerns about the executor’s financial stability.
How Much Does a Probate Bond Cost?
The cost of a probate bond is typically a percentage of the bond amount, usually ranging from 0.5% to 1% per year. For example, if the court requires a $200,000 bond, the annual premium might range from $1,000 to $2,000. The premium is paid from estate funds as an administrative expense.
Factors that affect bond cost include the size of the estate, the executor’s personal credit history, and the surety company’s underwriting standards.
What Happens If the Bond Is Not Posted?
If the court requires a bond and the appointed executor or administrator cannot obtain one (for example, due to poor credit or inability to pay the premium), they may be unable to serve. In that case, the court may appoint an alternative executor, an administrator, or a professional fiduciary to manage the estate.
Why the Oath and Bond Matter
The oath and bond work together to protect everyone involved in the probate process. The oath establishes the executor’s legal obligations, while the bond provides a financial safety net in case those obligations are not met. Together, they ensure accountability and help maintain the integrity of the probate system.
How Hunsinger Law Group Can Help
At Hunsinger Law Group, we guide executors and administrators through every step of the probate process in Illinois and Missouri, including understanding oath and bond requirements, obtaining bond waivers when appropriate, and fulfilling fiduciary duties. Whether you have been named as an executor in a will or need to petition for administration of an estate, we can help.
See all of our estates posts.
Whether you are starting an estate plan or have had one for years, have us review it to make sure that your wishes are protected. Call (833) 256-6644 or use our form to schedule a consultation.
HUNSINGER LAW GROUP
Helping secure your legacy and peace of mind
See all of our estates posts
Whether you're starting an estate plan or have had one for years, have us review it to make sure that your wishes are protected. Call (833) 256-6644 or use our form to
schedule a consultation.
HUNSINGER LAW GROUPHelping secure your legacy and peace of mind