Detailed Answer
Short answer: In North Dakota you often must post a bond to serve as an administrator (personal representative) of an intestate estate unless the court approves a waiver. Family members and heirs can ask the court to waive the bond, and the court may grant a waiver when all interested parties consent or other protections exist. However, the court can require a bond to protect creditors and heirs even if relatives agree not to require one.
This explanation assumes no will exists (intestate succession) and that you are seeking appointment as the personal representative. It is a plain-language guide only and not legal advice; consult an attorney or the court if you need binding guidance.
What is a bond and why is it required?
A bond (sometimes called a fiduciary bond, probate bond, or surety bond) is an insurance-like guarantee that the person appointed to manage the estate will follow the law and the court’s orders. If the administrator mismanages assets, creditors or heirs can make a claim against the bond. The bond protects the estate’s beneficiaries and creditors.
Where North Dakota law addresses this
North Dakota’s probate rules and statutes are in the North Dakota Century Code, Title 30.1 (Probate). For statutory language and further details, review the probate provisions at the North Dakota Legislature website: North Dakota Century Code, Title 30.1 (Probate). For practical court forms and local procedures, see the North Dakota Courts self-help probate pages: North Dakota Courts – Probate Self-Help.
When the court will require a bond
- If the estate is sizable or has significant assets, courts commonly require a bond to protect heirs and creditors.
- If any interested person (creditor or heir) objects to waiving the bond, the court will usually require bond unless it finds good cause not to.
- If the proposed administrator has a conflict of interest, a history of fiduciary problems, or the court otherwise doubts the person’s ability to safeguard estate assets, the court may require a bond even if heirs agree to waive it.
When a bond may be waived
- Many courts allow a bond waiver when all persons entitled to notice or the interested heirs agree in writing and the court approves the waiver.
- Sometimes a will can waive bond for the person named as executor. With no will, the heirs’ unanimous written consent may permit a waiver.
- Statutes and local court rules set the exact mechanics for requesting a waiver; you will generally ask the court at the time you petition for appointment and provide written waivers signed by all interested parties.
How to request a bond waiver in practice
- File a petition for appointment as personal representative (administrator) with the county probate court where the decedent lived.
- Provide statutory notice to heirs and other interested persons. Include a written request to waive the bond on the court form or in a separate affidavit.
- Collect signed written waivers from all heirs and interested persons if possible. Some courts want notarized signatures or specific form language—check local rules or the court clerk’s guidance.
- Ask the court to approve the waivers when it hears the appointment. If the court accepts the waivers, it may issue letters of administration without a bond; otherwise it will set bond amount and require posting a surety bond.
How the bond amount is set
The court typically sets the bond amount to reflect the value of estate assets and anticipated receipts during administration (e.g., cash, investments, rental income). Courts want the bond large enough to cover potential losses. If the court orders a bond, you can obtain it from a surety company (probate bond company). The surety charges a premium based on the bond amount and the proposed administrator’s creditworthiness.
Examples (hypothetical)
Example A — Small estate, all heirs agree: If the decedent leaves only a modest bank account and the three adult children all sign a written waiver and file it with the court, the court may approve appointment without bond.
Example B — Larger estate or creditors present: If the estate includes real estate, investments, or known creditors, the court is more likely to require a bond despite family agreement to waive it.
When to hire an attorney
If heirs disagree about waiving the bond, if creditors exist, if the estate is complex, or if someone contests your fitness, hire a probate attorney. An attorney can draft the correct waiver language, advise about bond amount, and represent you at the appointment hearing.
Important: This article provides general information about North Dakota probate practice and does not give legal advice. For advice about a particular case, contact a licensed North Dakota attorney or the probate court.
Helpful Hints
- Start by contacting the county court clerk’s office where the decedent lived; clerks can explain local filing procedures and provide required forms.
- Get written waivers from all heirs if you want to avoid bond; unsigned or informal agreements may not suffice for the court.
- Check whether the estate has known creditors or recent unpaid bills—creditors increase the chance that the court will require a bond.
- If a bond is required, obtain quotes from several surety companies. Premiums vary by company and applicant’s financial background.
- Keep a complete inventory and receipts for estate transactions. Whether or not you post bond, thorough records reduce the risk of disputes and claims against you.
- For statutes and rules, begin with the North Dakota Century Code, Title 30.1 (Probate): https://www.legis.nd.gov/cencode/t30-1. For court forms and local procedure, visit: https://www.ndcourts.gov/legal-resources/self-help/probate.
- When in doubt, schedule a brief consultation with a probate attorney. A short consult can clarify whether a bond is required and how to present waivers to the court.