Updated: Aug 4, 2021
The word “probate” has entered your life. Someone you love or who has trusted you as a steward of their estate has died, and it is now time to settle what remains.
Our goal is to create a general understanding of what Montana probate is and to answer some common questions for you. Measure Law is home to the best Montana probate lawyers who are eager to assist you in this process. Don’t hesitate to call Measure Law for additional will, trust and probate assistance. Our core value is to be your legal expert so you can focus on living.
If you’re struggling with probate terminology, read through our Terms to Know in Montana Probate to gain a better understanding and basic knowledge.
Probate is simply the legal process of transferring property after an owner's death, acting out the wishes in a will, and if there isn’t a will in place, according to state law.
Is probate required?
The title of assets, namely property and bank accounts, determines whether or not probate is required. This is anything owned by someone individually, without a beneficiary.
It’s not always obvious if an estate will require probate, here are a few examples:
The deceased’s home, which has a title in both spouse’s names and with rights of survivorship, is not subject to probate. The survivor simply takes on the title of the property after recording an affidavit in the county property records.
A bank account where an individual named specific beneficiaries upon their death does not require probate.
A residential property owned by a single individual is subject to a probate proceeding.
Any account that is not either jointly held, or set up with designated beneficiaries is subject to probate. An exception to this rule applies for estates less than $50,000.00 in total assets value.
When should I begin the Montana probate process?
We recommend our clients start working through the probate process anywhere from 2-8 weeks after the death.
While there isn’t a specific deadline for opening a probate, if you wait longer than three years from the date of death it will require a "formal" probate proceeding, which means you will need to have a hearing in court to open the probate.
Montana law requires a probate be open for a minimum of six months before it can be closed.
These steps are for when things stay close to on track and with no disputes. However, probates can get complex and sometimes even messy if heirs try to contest the will.
Step 1: Gather initial information and set up meeting with your probate attorney
Step 2: Meet with probate attorney
Step 3: File documents necessary for opening probate with District Court
Step 4: Court issues an Order Appointing Personal Representative and the Letters of Administration
Step 5: Obtain a tax identification number from the IRS
Step 6: Publish and send notice to creditors
Step 7: Send notice to heirs and devisees
Step 8: Tax returns due nine months after death.
Step 9: Final inventory
Step 10: Final accounting
Step 11: Final distribution and closing
Step 12: Receipts filed
Step 13: Decree of Final Discharge issued by court
What happens without a will?
In Montana if you die without a will, your assets are distributed according to a priority under state law known as “intestate succession.”
Montana law sets out specific requirements for intestate succession, but in general, if you are survived by a spouse, your spouse will receive 100% of your estate.
However, if you have children from a prior marriage then it gets more complicated.
And If you are not married at the time of death then the assets are distributed to children, parents, or more remote heirs based on a priority set by Montana law.
Since a personal representative is not named without a will, choosing one is also based on a priority of Montana law. The surviving spouse typically has first priority, then adult children, and so on.
Remember, you don’t have to be the expert on this, call Measure Law if you have any questions.
If there is a will
In an ideal world, your loved one or partner has outlined their wishes in a legal will.
It is important to locate the original will and not a copy, as the personal representative must file the original will with the probate court.
The will names a “personal representative” or executor of the estate. This is the individual who is responsible for administering the probate process, possibly you.
The will also sets out the distribution of the estate assets.
Let’s begin - here’s a checklist
Once you are ready to begin the probate process, here is a checklist of items you will need to bring to your attorney if you are the personal representative, or assisting the personal representative.
You may not have all of this information right away, and that’s ok. It often takes time to gather and most times a financial institution will not provide you with any bank information until they receive verification you are the legally appointed personal representative. Remember, this is a process and we are here to help.
A copy of the death certificate, usually obtained by the funeral home.
The original will, if there is one.
Contact information for all of the people, businesses, and/or organizations named in the will
Copies of deeds for real estate
Copies of the most current bank statements, investment accounts, etc.
A personal property list, if the decedent left one
Information regarding any out of state assets
Information on known debts or claims against the deceased
TIP: The only information necessary to file documents with the court to begin the probate process are the death certificate, original will, and names and addresses of those named in the will.
If after reading all of this you’re feeling even more overwhelmed, don’t panic! Probate is a process and the first step is simply to start. If you’re not sure what the next right step is, call Measure Law, 406-752-6373. With the best Montana probate attorneys, we will guide you through the probate process.
This article is intended for educational and information purposes only, it is not intended to act as legal advice.