Executors are sometimes surprised to learn they need to purchase a bond before the court will issue letters. Others assume a bond is always required and are relieved to learn it isn't. New York's rules fall somewhere in between, and knowing which situation you're in early can save time and money.
When a will waives the bond, and when it doesn't help
An executor named in a will does not need a bond unless the will, SCPA 806 or the court under SCPA 710 requires one (SCPA 710(1)). An administrator usually does need a bond (SCPA Article 8); most New York wills nonetheless say expressly that no bond is required. When a will contains this waiver and names a competent, willing executor, the court typically issues letters testamentary without requiring a bond. A bond becomes necessary anyway when:
- The estate is proceeding through intestate administration, where there is no will to waive the requirement and an administrator generally must post a bond (a will that is simply silent on bonding does not by itself require an executor to bond under SCPA 710)
- The named fiduciary lives outside New York State, which can lead a court to require a bond even where a will attempts to waive it
- An interested party formally objects to the waiver, raising specific concerns about the fiduciary's suitability or the safety of estate assets
- A fiduciary is being appointed for a minor or incapacitated distributee's share, where courts are often more cautious by default
How the bond is priced and what it protects
When required, a bond's amount is generally tied to the value of personal property the fiduciary will control, sometimes adjusted for real property that may be sold during administration. The fiduciary purchases the bond from a surety company, paying a premium, typically payable as a reasonable administration expense of the estate. A bond protects beneficiaries and creditors, not the fiduciary: if a bonded fiduciary breaches their duties and causes a loss, the surety can be required to cover it up to the bond amount, then seek reimbursement from the fiduciary personally. Our attorneys regularly advise trustees and executors on whether a bond will be required and how to secure one efficiently, including helping compare quotes from different surety companies so a fiduciary isn't overpaying for coverage the estate is required to carry.
Anyone drafting a will can address this proactively by naming a New York-resident executor when possible and including a clear bond waiver, reducing the likelihood this issue arises after death.
If you're serving as a fiduciary and unsure whether a bond will be required, or need help obtaining one quickly, call +1 212 518 3868 or schedule a free consultation.
