What does "Probate" mean?
The probate process is the legal, administrative process that determines the value of the assets of a deceased person and distributes these assets according to state law. More specifically the probate proceedings serve to:
Determine whether or not the deceased person had a will, and determine the validity of that will;
Appoint a personal representative to gather, manage and protect the property and assets of the deceased;
Identify and notify heirs and/ or devisees of the estate;
Pay debts of deceased and settle claims of creditors;
Distribute assets and property of the estate to the heirs according to Montana state law of intestacy; or to devisees named in the will.
The legal description of probate ignores the reality that these are real lives and real families trying to cope with tragedy. Probate is a foreign process forced on people at the worst possible time. Many people think of probate as a dirty word, a reputation that isn't entirely deserved. As a probate attorney, I think my job is to make the process quick, affordable, and understandable.
How are Assets Distributed in a Probate?
Distribution by Last Will & Testament
How the assets will be distributed depends on whether or not the deceased person drafted a will prior to his or her death. If there is a will, then the property and assets will be distributed by the personal representative as directed under the will. If individual died without a will then property and assets will be distributed according to Montana law of intestate succession.
Distribution by Intestate Succession
The laws of intestate succession in Montana determine who receives property and assets of a deceased person, and the how much of that property they will receive. According to Montana law if an individual is survived by a spouse only, then his or her spouse will receive 100% of the property of the estate. If the individual had children with that spouse, then the spouse is also entitled to receive 100% if the estate property.
However, if the deceased person has children from a prior marriage, step children, or is not married, the distribution of property becomes more complicated. For example, if the deceased individual had a surviving spouse and children from a prior marriage, then the spouse is entitled to receive $100,000 plus ½ of the remaining estate and the child is entitled to receive ½ the remaining estate.
How Long Does Probate Take?
A Montana probate requires the publication of a notice to creditors. The purposes of the notice to creditors is to ensure all potential creditors have been notified of the death and to set a deadline for submission of claims. In a Montana probate proceeding a creditor must present a claim within 4-months from the date of the first publication of the notice to creditors. After this 4-month timeline creditors can no longer bring a claim against the estate, and the personal representative may begin the process of distributing assets if the estate is ready for distribution. In Montana the probate must be open for a minimum of 6-months. However, more complex probate estates, or probates awaiting the sale of real estate may be open much longer.
How Much Does Probate Cost?
The overall cost of a probate depends on the complexity of the estate. A very simple probate may cost only a couple thousand dollars or less. However, if an estate is more complex, or if there are disputes between heirs or family members, the cost of a probate can be quite significant. The cost of a Montana probate is capped by statute for both the Personal Representative (sometimes called the executor in other states) and the attorneys involved. This means that from the outset, you should have a good idea of what a probate will cost. At Measure Law we administer probate estates for our clients without charging any upfront fee and wait until the estate is closed and the case is finished to receive our payment.
How can an attorney help?
When a family experiences a death it can be a troubling and overwhelming time. That is why it is important to have an attorney that can look after your interests during the probate process to reduce any unnecessary complications, prevent undue delays and, perhaps most importantly, ensure that your loved one’s last wishes are properly acknowledged. At Measure Law we strive to make the the probate process as understandable, efficient, and as painless as possible so that you can move on with your own life.