Two of the most fundamental requirements associated with a proceeding in probate court are notice and obtaining a surety bond. Probate court deals with extremely sensitive matters--wills and estates, trusts, conservatorships, and other types of cases. Money, the distribution of money, and investing are at the heart of most probate cases. Therefore, applicable laws and the courts themselves take care to ensure that the interests of individuals who are affected by a particular probate case are protected. There are limited instances in which a waiver of the presumptive requirement of notice and bond can be waived.
In probate cases of all types the presumption always exists that notice of the proceedings needs to be given to every interested party. For example, if a person's estate is being probated--processed as a case in probate court--notice must be given of these proceedings to the heirs of the person who has died. There is a similar presumption requiring a surety bond. Because probate cases tend to deal with money, a surety bond is required in the event that a person granted authority to deal with the assets of a probate estate does something inappropriate.
Obtaining Waiver of Notice
At the commencement of a probate case, the interested parties will be identified in court. In some instances, it is possible to request that the court allow you the ability to obtain waivers of notice from these interested persons. These individuals will need to duly execute a document which clearly sets forth that they are willing to waive the statutory notice to which they are entitled in regard to the probate proceedings. The executed documents are then filed with the court and the proceedings can carry forth without these individuals receiving specific notice because of their waivers.
Waiver of Surety Bond
Obtaining a waiver of a surety bond is more difficult. The one instance in which a court is more than likely to agree to such a waiver is when an individual, in his or her last will and testament, designates someone to be the executor of that will with the statement that he or she is to serve without bond. In other cases, there are situations in which a person's position might warrant service without a bond. For example, if a bank is designated as a trustee in a probate case, the requirement of a bond can be waived. However, if an individual is appointed as a trustee, a bond waiver will not be possible in most cases.
The effect of a notice waiver is to allow the probate case to proceed more efficiently, in a more timely manner. Waiting periods associated with certain notice requirements can be avoided. The effects of a bond waiver can result in at least some financial savings to the trust, estate or conservatorship that is the subject of a probate case. The cost of the surety bond is an expense of the trust, estate or conservatorship.
There is a risk associated with a waiver of notice in a probate case. By waiving notice, it is possible that a person with an interest in the case may fail to be present when necessary for a hearing or some other proceeding. In many ways there is an even more significant risk associated with waiving the bond requirement. A person appointed to deal with the financial affairs of a trust, estate or conservatorship may misdeal with the assets of the estate--embezzle funds, for example. If there is no bond in place, there is no alternate resource available to reclaim those misused or misappropriated assets.