OATH AND BOND OF FIDUCIARIES

Iowa Code tit. XV, ch. 633, subch. III, pt. 7

in effect

Iowa Code § 633.168 Oath — certification.

633.168. Oath — certification. Every fiduciary, before entering upon the duties of the fiduciary’s office, shall subscribe an oath or certify under penalties of perjury that the fiduciary will faithfully discharge the duties imposed by law, according to the best of the fiduciary’s ability. [C51, §1276, 1316, 1317, 1496; R60, §2308, 2348, 2349, 2548; C73, §2246, 2321, 2362, 2363; C97, §3197, 3267, 3268, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11887, 12577, 12579; C46, 50, 54, 58, 62, §631.10, 632.7, 633.43, 668.5, 668.7; C66, 71, 73, 75, 77, 79, 81, §633.168] 2007 Acts, ch 134, §8, 28

Iowa Code § 633.169 Bond.

633.169. Bond. Except as herein otherwise provided, every fiduciary shall execute and file with the clerk a bond with sufficient surety or sureties, as hereinafter provided. It shall be conditioned upon the faithful discharge of all the duties of the fiduciary’s office according to law, including the duty to account. It shall be procured at the expense of the estate, if an approved surety company bond is furnished. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.169]

Iowa Code § 633.170 Amount of bond.

633.170. Amount of bond. 1. How determined. Except as herein otherwise provided, the court or the clerk shall fix the penalty of the bond in an amount equal to the value of the personal property of the estate, plus the estimated gross annual income of the estate during the period of administration. 2. Bonds fixed by clerk. Unless a bond is waived by will under the authority of section 633.172, or by other instrument creating the estate, or in accordance with section 633.173, or by prior order of court, the clerk shall fix the bond in the amount provided by subsection 1 of this section. The clerk shall not thereafter increase or decrease a bond. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887, 12578; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43, 668.6; C66, 71, 73, 75, 77, 79, 81, §633.170]

Iowa Code § 633.171 Approval by clerk.

633.171. Approval by clerk. The bond shall not be deemed sufficient until it has been examined and approved by the clerk who shall endorse such approval thereon. In the event that the bond is not approved, the fiduciary shall, within such time as the court or the clerk directs, secure and file a bond with satisfactory surety or sureties. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.171]

Iowa Code § 633.172 Will — waiver of bond.

633.172. Will — waiver of bond. 1. When, by the terms of the will, the testator has directed or expressed the desire that no bond shall be required, such direction or expression shall be construed to be a waiver of the posting of a bond by the fiduciary for all purposes, and no bond shall be required unless the court for good cause finds it proper to require one; if no bond is initially required, the court may nevertheless, for good cause, at any subsequent time require that a bond be given. 2. Unless otherwise required by the instrument creating the relationship, or by order of court, bank and trust companies shall not be required to provide any bond. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.172] 86 Acts, ch 1131, §2

Iowa Code § 633.173 Waiver of bond by distributees.

633.173. Waiver of bond by distributees. If the distributees, in writing waive the statutory requirement that a bond shall be filed by the fiduciary with the clerk, and the court finds that the interests of the creditors will not thereby be prejudiced, no bond shall be required. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.173] Attorneys acting as fiduciaries, see Iowa Ct.R. 39.13

Iowa Code § 633.174 Guardians and conservators — bond.

633.174. Guardians and conservators — bond. 1. When the guardian appointed for a person is not the conservator of the property of that person, no bond shall be required of the guardian, unless the court for good cause finds it proper to require one. If no bond is initially required, the court may, nevertheless, for good cause, at any subsequent time, require that a bond be given. 2. Every conservator shall execute and file with the clerk a bond with sufficient surety or sureties except as provided in section 633.175. [C51, §1276, 1316, 1317, 1496; R60, §2308, 2348, 2349, 2548; C73, §2246, 2321, 2350, 2362, 2363; C97, §3197, 3267, 3268, 3293, 3301; S13, §3268; C24, 27, §11828, 11838, 11876, 11887, 12579; C31, 35, §11828, 11838, 11876, 11887, 12579, 12644-c10; C39, §11828, 11838, 11876, 11887, 12579, 12644.10; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43, 668.7, 672.9; C66, 71, 73, 75, 77, 79, 81, §633.174] 2019 Acts, ch 57, §7, 43, 44

Iowa Code § 633.175 Waiver of bond by court.

633.175. Waiver of bond by court. 1. The court, for good cause shown, may exempt any fiduciary from giving bond, if the court finds that the interests of creditors and distributees will not thereby be prejudiced. 2. However, the court, except as provided in section 633.172, subsection 2, shall not exempt a conservator, other than a financial institution with Iowa trust powers, from giving bond in a conservatorship unless the court finds that there is an alternative to a bond that will provide sufficient protection to the assets of the protected person. The conservator shall submit a plan for any proposed alternative to a bond for review and approval by the court. [C51, §1276, 1316, 1317, 1496; R60, §2308, 2348, 2349, 2548; C73, §2246, 2321, 2350, 2362, 2363; C97, §3197, 3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887, 12577; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43, 668.5; C66, 71, 73, 75, 77, 79, 81, §633.175] 91 Acts, ch 36, §5; 92 Acts, ch 1012, §3; 2008 Acts, ch 1119, §15, 39; 2019 Acts, ch 57, §8, 43, 44 Administering moneys paid by United States department of veterans affairs, see §633.622 Attorneys acting as fiduciaries, see Iowa Ct.R. 39.13

Iowa Code § 633.176 Reduction of bond by deposit.

633.176. Reduction of bond by deposit. Personal property of the estate may be deposited with a bank or trust company located in the state of Iowa upon such terms as may be prescribed by order of the court. The amount of the bond of the fiduciary may be then reduced as the court may determine. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.176]

Iowa Code § 633.177 Deposit in lieu of bond.

633.177. Deposit in lieu of bond. The court may permit the fiduciary to deposit cash or other prescribed securities of the fiduciary’s own in lieu of bond. [C51, §1276, 1316, 1317; R60, §2308, 2348, 2349; C73, §2321, 2350, 2362, 2363; C97, §3267, 3268, 3293, 3301; S13, §3268; C24, 27, 31, 35, 39, §11828, 11838, 11876, 11887; C46, 50, 54, 58, 62, §631.10, 632.7, 633.32, 633.43; C66, 71, 73, 75, 77, 79, 81, §633.177]

Iowa Code § 633.178 Letters.

633.178. Letters. Upon the filing of an oath of office or certification and a bond, if any is required, the clerk shall issue letters under the seal of the court, giving the fiduciary the powers authorized by law. [C51, §1319; R60, §2351; C73, §2365; C97, §3303; C24, 27, 31, 35, 39, §11889; C46, 50, 54, 58, 62, §633.45; C66, 71, 73, 75, 77, 79, 81, §633.178] 2007 Acts, ch 134, §9, 28

Iowa Code § 633.179 Review by clerk when inventory is filed.

633.179. Review by clerk when inventory is filed. At the time the inventory of the estate is filed, the clerk shall review the amount of bond, and report to the court as to any apparent insufficiency thereof. [C66, 71, 73, 75, 77, 79, 81, §633.179]

Iowa Code § 633.180 Bond changed.

633.180. Bond changed. The court may at any time require a new bond, or increase or decrease the amount of the penalty of the bond of any fiduciary, when good cause therefor appears. [C51, §1510; R60, §2562; C73, §2247; C97, §3198; C24, 27, §12604; C31, 35, §12604, 12644-c9; C39, §12604, 12644.09; C46, 50, 54, 58, 62, §668.31, 672.9; C66, 71, 73, 75, 77, 79, 81, §633.180]

Iowa Code § 633.181 Obligees of bond — joint and several liability.

633.181. Obligees of bond — joint and several liability. The bond of the fiduciary shall run to the use of all persons interested in the estate, and shall be for the security and benefit of such persons. The sureties shall be jointly and severally liable with the fiduciary, and with each other. [C66, 71, 73, 75, 77, 79, 81, §633.181]

Iowa Code § 633.182 Qualifications for sureties.

633.182. Qualifications for sureties. Qualifications for sureties on probate bonds shall be the same as those provided by section 636.4 or section 636.14, provided, however, that no attorney shall act as surety on any such bond. [C66, 71, 73, 75, 77, 79, 81, §633.182]

Iowa Code § 633.183 Authority for fiduciary and surety to enter into agreement for deposit of property or joint control.

633.183. Authority for fiduciary and surety to enter into agreement for deposit of property or joint control. It shall be lawful for the fiduciary to agree with the fiduciary’s surety for the deposit of any or all moneys and other property of the estate with a bank, safe deposit or trust company, authorized by law to do business as such, or other depository approved by the court, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of such moneys or other property without the written consent of the surety, or on order of the court made on such notice to the surety as the court may direct. [C66, 71, 73, 75, 77, 79, 81, §633.183] Deposit and joint control agreements, see also §636.47

Iowa Code § 633.184 Release of sureties before estate fully administered.

633.184. Release of sureties before estate fully administered. 1. Release for cause. For good cause, the court may, before the estate is fully administered, order the release of the sureties of the fiduciary and require the fiduciary to furnish a new bond. 2. Extent of liability of original and new sureties. The original sureties shall be liable for all breaches of the obligation of the bond up to the time of filing of the new bond and the approval thereof by the clerk, but not for acts and omissions of the fiduciary thereafter. The new bond shall bind the sureties thereon with respect to acts and omissions of the fiduciary from the time when the sureties on the original bond are no longer liable therefor. [C51, §1318; R60, §2350; C73, §2364; C97, §3302; C24, 27, 31, 35, 39, §11888; C46, 50, 54, 58, 62, §633.44; C66, 71, 73, 75, 77, 79, 81, §633.184]

Iowa Code § 633.185 Insolvency of fiduciary.

633.185. Insolvency of fiduciary. If, at any time, a fiduciary becomes insolvent after qualifying as such fiduciary, and after the maturity of a debt owing by such fiduciary to the estate, then the fiduciary and the sureties on the bond shall be liable to the estate for the indebtedness owing by the fiduciary to the estate. If the fiduciary is not solvent at any time after qualification and after the maturity of the debt, the sureties on the bond shall not be liable to the estate for the indebtedness. [C66, 71, 73, 75, 77, 79, 81, §633.185]

Iowa Code § 633.186 Suit on bond.

633.186. Suit on bond. 1. Execution of bond deemed as appearance. The execution and filing of the bond by a fiduciary, any other provisions of law notwithstanding, shall be deemed an appearance by the surety in the proceeding for the administration of the estate including all hearings with respect to the bond. 2. Summary enforcement in proceedings for administration. Subject to the provisions of subsection 3 hereof, the court may, upon the breach of the obligation of the bond of a fiduciary, after notice to the obligors on the bond and to such other persons as the court directs, summarily determine the damages as a part of the proceeding for the administration of the estate, and by appropriate process enforce the collection thereof from those liable on the bond. Such determination and enforcement may be made by the court upon its own motion or upon application of a successor fiduciary, or of any other interested person. The court may hear the application at the time of settling the accounts of the defaulting fiduciary or at such other time as the court may direct. Damages shall be assessed on behalf of all interested persons and may be paid over to the successor or other nondefaulting fiduciary and distributed as other assets held by the fiduciary in the fiduciary’s official capacity. 3. Enforcement by separate suit. If the estate is already distributed, or if, for any reason, the procedure to recover on the bond provided in subsection 2 hereof, is inadequate, any interested person may bring a separate suit in a court of competent jurisdiction on the person’s own behalf for damages suffered by the person by reason of the default of the fiduciary. 4. Bond not void upon first recovery. The bond of the fiduciary shall not be void upon the first recovery, but may be proceeded upon from time to time until the whole penalty is exhausted. 5. Denial of liability by surety — intervention. If the court has already determined the liability of the fiduciary, the sureties shall not be permitted thereafter to deny such liability in any action or hearing to determine their liability; but the surety may intervene in any hearing to determine the liability of the fiduciary. [C51, §1387, 1389, 1509; R60, §2419, 2421, 2561; C73, §2251, 2435; C97, §3201, 3361; C24, 27, 31, 35, 39, §11984, 11985, 12603; C46, 50, 54, 58, 62, §635.79, 635.80, 668.30; C66, 71, 73, 75, 77, 79, 81, §633.186] For service of suit on bond, see §636.20

Iowa Code § 633.187 Limitation of action on bond.

633.187. Limitation of action on bond. No proceedings upon the bond of a fiduciary shall be brought subsequent to two years after the discharge of the fiduciary or six months after the discovery of fraud, whichever is later. [C66, 71, 73, 75, 77, 79, 81, §633.187]