Detailed Answer
Short answer: In New Hampshire, a personal representative appointed to administer an intestate estate is generally required to provide a fiduciary (surety) bond, but the probate court can dispense with that requirement in certain situations—most commonly when all interested parties give written waivers or when the court finds a waiver is appropriate. This is a general overview only and not legal advice.
How it works in plain language
When someone dies without a will (intestate), the probate court appoints an administrator to collect assets, pay debts and taxes, and distribute what remains to the heirs. The court usually requires the administrator to post a bond (a type of insurance) that protects the estate against mismanagement, theft, or mistakes by the administrator.
Who sets the bond and how much?
The probate court sets the bond amount. Courts commonly base the required bond on the value of the estate’s assets and potential risks (known creditors, business interests, or real property). The bond may be satisfied by a surety company, by one or more individuals as sureties, or by other security the court accepts.
When can the bond requirement be waived?
- Waiver by interested persons: If all persons entitled to notice and distribution (heirs and other interested parties) sign written waivers consenting to appointment without bond, the court will typically accept that and dispense with the bond requirement.
- Waiver by will: In testate cases, a decedent’s valid will can direct that the executor serve without bond. In intestate cases there is no will, so this ground does not apply.
- Court’s discretion: The probate court has discretionary authority to reduce, limit, or waive bond requirements for good reason—e.g., when the proposed administrator is the sole heir and there is little risk, when the estate is small, or when other protections make a bond unnecessary.
What about alternative security?
The court may accept alternative forms of security instead of a traditional surety bond. For example, the court can require that estate funds be held in a blocked account, require periodic accountings with heightened review, or accept property as security. The court decides what it considers adequate protection for the estate.
Practical points for family members serving as administrator
– If you are the proposed administrator and the estate is small and the heirs all agree you should serve without bond, obtain written waivers from each heir and file them with your appointment petition.
– If heirs disagree or creditors are likely, expect the court to require a bond.
– If you have a clean credit history and prefer not to pay a surety premium, you can ask relatives to act as personal sureties or offer other security, subject to court approval.
Where to look in New Hampshire law and court resources
New Hampshire’s probate process and rules are administered by the state courts. For statutory language and forms, consult the New Hampshire Revised Statutes and the Probate Division pages:
- New Hampshire Revised Statutes (RSA) — general access: https://www.gencourt.state.nh.us/rsa/html/
- New Hampshire Judicial Branch — Probate Division information and local office contacts: https://www.courts.state.nh.us/probate/
Note: Specific statute sections govern appointment, bonds, and waivers. The probate court’s local rules and procedures set filing requirements and forms for waiving bond or proposing alternate security.
Sample hypothetical application of these principles
Mary’s mother died without a will in New Hampshire. Mary is the only child and sole heir. The estate consists of a modest checking account and one car. Mary petitions the probate court to be appointed administrator. Because the estate is small and Mary is the sole heir, the court is likely to accept written waivers signed by Mary (as sole heir, she can sign on her own behalf) and dispense with the bond. If, instead, the decedent had multiple adult children who disagreed about Mary serving, the court would likely require Mary to post a bond or accept other security.
Steps to seek waiver or to get appointed with minimal cost
- Identify and list all heirs and other interested parties entitled to notice.
- Ask each heir to sign a written waiver of bond; use a court form if available or draft a short waiver and file it with the appointment petition.
- File a petition for administration with the probate court and attach waivers or a request seeking a bond waiver and explain why it’s appropriate.
- If the court requires a bond, get a quote from a surety company or discuss alternative security with the clerk or judge in advance.
When to consult a lawyer
Consider consulting a probate attorney if the estate has complicated assets (real estate, business interests), contested heirs, many creditors, or potential tax liabilities. An attorney can draft appropriate waiver language, propose acceptable alternative security, and represent you at any hearing.
Disclaimer: This article is general information only and does not constitute legal advice. It is not a substitute for consulting a licensed New Hampshire attorney about the specific facts of your case.
Helpful Hints
- Before filing, contact the local probate clerk’s office to learn court-specific bond procedures and to get any official waiver forms: NH Probate Division.
- Get written waivers from all heirs if possible—courts are far more likely to excuse bond when everyone agrees in writing.
- Estimate the estate value reasonably. Courts use that value to set bond amounts; underestimating creates problems, and overestimating increases cost.
- If a surety bond is required, compare quotes from surety companies; premiums vary and some companies offer better pricing for family-administration matters.
- Keep full, clear records and provide prompt accountings. Reliable record-keeping reduces the court’s concern and can help avoid future bond disputes.
- If you expect creditor disputes or litigation, assume a bond will be required and plan accordingly.
- When in doubt, get brief advice from a New Hampshire probate attorney—an initial consultation can often save time and expense later.