Section 702
In the case of a testamentary trust, a trustee shall furnish a bond for the performance of the trustee's fiduciary duties and a surety shall be required unless waived by the terms of the trust or found by the probate and family court department of the trial court to be not necessary to protect the interests of the beneficiaries. On petition of the trustee or other interested person the probate court may excuse a requirement of bond, reduce the amount of the bond, release the surety or permit the substitution of another bond with the same or different sureties. If the instrument creating the trust exempts the trustee from furnishing a bond or limits the amount thereof, or the probate court determines that the bond is insufficient, the probate court may, if it concludes that a bond is necessary or that a bond of a larger amount is necessary, require the furnishing of such bond. The terms and conditions of the bond shall be as set forth in section 3-606 of chapter 190B.
Procedural advisory commentary (2013)
Testamentary trustees only. Emphasis added.
Practice alert: Unless otherwise ordered by the court, a bond shall not be required if the petitioner is seeking the appointment of a non-testamentary trustee. Only a testamentary trustee is required to file a bond under the MUTC.
Confirming appointment of a testamentary trustee
Form update: A trustee of a testamentary trust shall file a Bond (MPC 801) along with a Statement of Confirmation of Appointment of Testamentary Trustee (MPC 275). The forms shall be filed with the same court where the will was probated. A bond with sureties shall be required unless: (1) sureties are waived by the terms of the trust or (2) found by the court, in a prior formal proceeding, to not be necessary (see part A, “Modifying a Bond Prior to Approval by the Court”, below). The Statement of Confirmation of Appointment of Testamentary Trustee (MPC 275) replaces the Petition for Appointment of Testamentary Trustee (MPC 275) and Decree and Order on Petition for Appointment of Testamentary Trustee (MPC 781) forms. The filing fee is $75.00 for the bond. There is no separate filing fee for the Statement of Confirmation of a Testamentary Trustee. Upon payment of an attested copy fee of $2.50 per page, the Register shall issue an attested copy of the Statement form provided the bond is examined and approved by the court. Letters no longer issue to a testamentary trustee appointed under the MUTC.
Modifying the bond of a testamentary trustee
A. Modifying a bond prior to approval by the court
Form update: A General Trust Petition (MPC 201) and a proposed Decree and Order of General Probate/Trust Petition (MPC 792) may be filed prior to confirmation of the testamentary trustee’s appointment in order to modify the bond prior to confirmation of the appointment by the court. Notice shall be by citation in accordance with § 109 of the MUTC.
B. Modifying a bond after approval by the court
In accordance with § 702, G. L. c. 205, §§ 14-18 and Standing Order 5-11 (as amended), the court may excuse the requirement of a surety bond, reduce the amount of a trustee’s bond, release or discharge the surety, or permit the substitution of another bond with the same or different sureties. If the instrument creating the trust exempts the trustee from furnishing a surety bond or limits the amount thereof, or if the court determines that the bond is insufficient, the court may, if it concludes that a surety bond is necessary or that a bond of a larger amount is necessary, require the furnishing of such bond.
Form update: To modify a bond after approval by the court, a Petition to Modify Bond (MPC 295) and a proposed Decree and Order to Modify Bond (MPC 776), may be filed. Notice shall be by citation in accordance with § 109 of the MUTC.
C. Modifying the obligations of a pre-MUPC bond
Trustees continue to have the obligations of their pre-MUPC bonds unless modified by petition. If a Petition to Modify Bond is filed requesting relief from the prior accounting obligations of the bond, the trustee may or may not be required by the court to bring any and all accounts up to date before the allowance of the petition.