What is a Mutual Will and Why Does an Executor Have to Post a Bond?
Full Question:
Answer:
A mutual will is a contract between two spouses to dispose of their property in a particular way. Generally spouses verbally agree to make reciprocal wills leaving their property to each other and the will is irrevocable upon the death of the survivor. If the first spouse dies and the survivor probates the mutual will, the survivor is contractually bound to leave his or her estate in accordance with the distribution scheme in the will. However, a mutual will is only effective when the other spouse makes a reciprocal will, otherwise, there is no binding agreement on the other surviving spouse as to how to bequeath their own property. A person cannot makes a will by oneself telling another how to dispose of their property, generally a person can only bequeath property owned in their name, unless there is an agreement to make a mutual will and both spouses actually make reciprocal wills.
The bond is a requirement of the court in probate. It is possible in the will to state that an executor may serve without bond, but it appears that wasn’t stated in the will.
Please see the following IL statute:
(755 ILCS 5/12?2) (from Ch. 110 1/2, par. 12?2)
Sec. 12?2. Individual representative; oath and bond.
(a) Except as provided in subsection (b), before undertaking the representative's duties, every individual representative shall take and file an oath or affirmation that the individual will faithfully discharge the duties of the office of the representative according to law and shall file in and have approved by the court a bond binding the individual representative so to do. The court may waive the filing of a bond of a representative of the person of a ward or of a standby guardian of a minor or disabled person.
(b) Where bond or security is excused by the will or as provided in subsection (b) of Section 12?4, the bond of the representative in the amount from time to time required under this Article shall be in full force and effect without writing, unless the court requires the filing of a written bond.
(Source: P.A. 90?796, eff. 12?15?98.)
