Montana Inheritance Laws

Throughout the first and second quarters of 2023, more than 2,600 probate cases were filed in the state of Montana. During these cases, a deceased individual’s relatives address issues regarding the former’s estate, such as who is entitled to which part of their property. Those who are unfamiliar with the legal guidelines in such matters can find themselves facing various difficulties as they navigate the state’s probate process.

This article will present an overview of Montana’s inheritance laws to help those who are currently involved in a probate case. It will also provide them with information regarding the steps of the probate process and the guidelines that affect the shares of beneficiaries. In addition, it will help families look for resources and potential legal assistance in the Treasure State that can help them smoothen the proceedings.

What Happens if Someone Dies With a Will in Montana?

A will is used in the event of a person’s death to distribute their estate in accordance with their wishes. In this document, the person specifies the recipients of their property. They also state what each beneficiary’s respective share of their estate will be. Additionally, a person may declare who will manage their property or become their children’s guardian after their passing.

Creating a Will

Any individual in Montana may create a will as long as they are at least 18 years old and “of sound mind.” This means that they possess the proper mental capacity to do so. For a will to be valid in Montana, the person making the will (known as the testator) must follow these legal requirements:

• They must sign the will or have it signed in their name by another person; the latter must be done in the testator’s presence and as instructed by them.

• At least two people must sign the will within a reasonable time after witnessing the testator sign it or after seeing the testator acknowledge the will or its signature.

A person deemed mentally competent can be chosen as a witness for a will, even if they are an interested party or someone who stands to gain or inherit something from it. A will or its provisions will not be declared invalid even if one of the witnesses who signed it is an interested party.

In Montana, wills are usually typewritten. The state does not accept oral or video wills Electronic wills are also not deemed valid in Montana, unlike in states like Arizona and Indiana. However, the state does accept “holographic” or handwritten wills, which do not require witnesses if:

• The will is signed by the testator.

• The provisions within the will are in the testator’s handwriting.

Once a will has been created, Montana allows a testator to deposit it in a court within the state for safekeeping. The court will then only grant access to the testator or any person authorized by them. A conservator may examine a will under the court’s supervision to preserve its confidential nature.

Upon the death of a person, the court will deliver their will to whoever the decedent has designated to receive it. Alternatively, it can be sent to the appropriate court in preparation for the probate process.

Choosing an Executor or Representative

In their will, a testator may also assign a representative or executor who will manage and distribute their estate after their death. In case a testator did not name a personal representative, the court will appoint one.

Generally, a representative must be at least 18 years old and someone who is able to handle the proceedings. If the court appoints a personal representative, it will prioritize the following individuals in descending order:

• The decedent’s surviving spouse (if they are a devisee).

• The decedent’s custodial parent (if the former is a minor).

• The decedent’s other devisees.

• The decedent’s surviving spouse (if they are not a devisee).

• The parent of a decedent who was “survived by issue” if none of the surviving kin are adults.

• The decedent’s other heirs.

• A public administrator.

• Any creditor (once 45 days have passed since the decedent’s death).

Montana’s Probate Process

After a testator in Montana dies, the probate process will take place in the district court of the county they live in. The chosen executor must first submit the decedent’s death certificate and will to the court.

From here, the court will verify whether the will is valid. Once the will’s validity has been confirmed, the executor or one of the decedent’s family members may file a petition to officially start the probate process.

There is generally no deadline for those who wish to start the probate process in Montana. However, if a will has not been probated for more than three years since the decedent’s death, a hearing will be held first for the matter to proceed formally.

After the probate process has been initiated, the executor must notify the decedent’s beneficiaries and heirs within 30 days. They must also inform the decedent’s creditors through a publication in the local newspaper. In Montana, creditors generally have up to four months to file a claim for payment.

During the probate process, the executor will be tasked with locating and recording all of the decedent’s assets for appraisal. After doing so, they must submit the inventory of the entire estate to the court.

Executors must also note taxes or debts on the decedent’s part. For example, tax returns are due within nine months after the latter’s death. If needed, an executor may sell off some of the decedent’s assets to cover these payments.

Once the executor finishes paying off any taxes, debts, or administrative costs, they will begin distributing the remainder of the decedent’s estate to their beneficiaries. Afterward, they must issue receipts detailing how the estate was distributed. Once this is done, the court will issue a Decree of Final Discharge.

On average, probate cases in Montana can last up to six months. Meanwhile, formal proceedings can take 10 months. These can occur when the will is contested, when the beneficiaries have disputes about its provisions, or if the decedent has no will. Potential beneficiaries may contact a probate attorney in Montana to help them prepare for the process.

Probate and Non-probate Assets

The following assets are subject to the probate process in Montana:

• Investments.

• Interest in a corporation or partnership.

• Property that was solely owned by the decedent and has no specified beneficiary.

• Property that the decedent owned as a tenant in common with other people.

On the other hand, assets that do not need to go through probate include:

• Vehicles.

• Jointly owned property and business assets.

• Financial or investment accounts that have a named beneficiary.

• Assets with a named beneficiary.

• Assets in a trust.

Contesting a Will

An interested party may contest a will in a probate case in Montana. While a testator can write a clause in their will that penalizes a party for contesting, state law will not recognize such a clause if there is a legally sufficient reason to contest the will. The grounds for contesting a will in Montana are as follows:

• The testator was not mentally sound during the will’s creation.

• The testator created the will under duress.

• There was undue influence that affected the will’s creation.

• The will did not adhere to the state’s provisions when it was created.

Under Montana law, if the court rules that a will is valid, the person who contested it must pay the costs of the party that defended the will’s validity. Conversely, the defending party will pay for the attorney fees (but not the other legal costs) of the one contesting the will if it is deemed invalid.

If the court declares a will invalid, it may instead distribute a testator’s estate through intestate succession. If a will is contested before a testator’s death, they may create another valid will that can be probated.

If an interested party wishes to contest a will, they will be given a maximum of two years to do so. This deadline begins counting down from the date of the testator’s death. Minors are also given up to two years after they turn 18 to file a contest.

What Happens if Someone Dies Without a Will in Montana?

If an individual without a will dies in Montana, their property will be distributed through intestate succession. In this scenario, the court will award the decedent’s estate to their surviving heirs or beneficiaries. Assets that are not required to go through probate are also not covered by intestate provisions.

Spousal Rights

Montana is an equitable distribution state and generally does not recognize community property as a result. However, it also has a Uniform Disposition of Community Property Rights at Death Act. Under this law, a surviving spouse is automatically entitled to one-half of a decedent’s estate. This share is not affected by the spouse’s right to take an elective share.

The surviving spouse of an intestate decedent will get different shares of the latter’s estate depending on whether there are descendants or other relatives involved. The provisions for this are as follows:

Children’s Rights

Similar to what is mentioned above, some provisions affect the estate shares of an intestate decedent’s children in Montana. Specifically, this depends on whether the decedent had children only with their spouse or other children with another person.

There are also statutory guidelines for any children other than an intestate decedent’s biological children.

• Adopted children will receive shares just like biological children; this does not apply to foster children or stepchildren that the decedent never legally adopted.

• Children born outside of marriage will receive shares if they were born while the decedent was not married to their spouse and if the decedent’s paternity has been established.

• Children who were legally adopted by another family will not receive shares; this does not apply to biological children who were adopted by the decedent’s spouse.

• Children who were conceived before the decedent’s death and born after it will receive shares if they survived for at least 120 hours after their birth.

• Grandchildren will only receive shares if their parents (the decedent’s children) are also deceased.

Rights of Other Surviving Relatives

If an intestate decedent has no spouse or children, their estate will be inherited by their parents, siblings, or next of kin. The entirety of the decedent’s property will be inherited by their parents if one or both are alive or by their siblings if their parents are deceased. Half-siblings are entitled to the same shares as full ones.

If a decedent has no surviving parents or siblings, their estate will be distributed to their grandparents or their grandparents’ descendants, as follows:

• One-half of the estate will go to the decedent’s paternal grandparents. The other half will go to their maternal grandparents.

• If both of the decedent’s paternal grandparents are deceased, their descendants will inherit their share. The same applies if both maternal grandparents are deceased.

If none of these relatives survive, the estate will pass to the decedent's closest relative.

Estates With No Heirs

If a decedent in Montana has no surviving heirs whatsoever, their property will be given to the state. The Attorney General will carry out investigations and inquiries to look for the decedent’s real and personal property for distribution.

Unique Situations in Montana Inheritance Law

It should be noted that Montana has a survivorship requirement for intestate heirs. According to this law, an heir must first survive a decedent for a minimum of 120 hours before they can inherit anything.

Additionally, the relatives of an intestate decedent in Montana may still inherit their share of an estate even if they are not U.S. citizens or if they are not legally in the country.

Montana also has its own slayer statute, which applies in cases where an heir or beneficiary kills or financially exploits a testator. In such situations, the law will strip the person of all their inheritance rights. For intestate decedents, their estate will be distributed as if the person who killed or exploited them had forfeited their claim to their share.

Furthermore, Montana has a special provision for gifts given by an intestate decedent to a relative during their lifetime. State law dictates that the value of such a gift will only be subtracted from the relative’s share if the decedent had put this in writing. The same provision applies if the relative confirms this in writing.

Does Montana Impose Inheritance and Estate Taxes?

Montana does not have inheritance or estate taxes under its own laws. However, if a person inherits property from a decedent in a state with an inheritance tax, it may be subject to that state’s provisions. In addition, Montana adheres to federal gift tax provisions for gifts worth more than $15,000 given within one calendar year.

Furthermore, federal estate taxes are also taken from inherited estates with values that exceed a certain amount. As of 2023, an estate tax applies to Montana estates worth more than $12.92 million. The tax rate can reach up to 40% of the amount that exceeds this given threshold.

Legal Resources Related to Inheritance Law in Montana

Families who are facing probate-related issues can refer to the following resources for more information. They can also consult with a Montana probate lawyer, who can help them learn about other relevant guidelines and requirements.

Montana Judicial Branch - Forms

State residents can visit the Montana Judicial Branch’s website to access downloadable forms that they can use for probate-related matters. The website also has forms related to estate planning and powers of attorney, as well as the creation of living wills. In addition, it has direct links to probate and estate laws that users can access for information.

Montana Judicial Branch - Court Help Program

The Montana Judicial Branch has a Court Help Program that gives legal assistance to those involved in civil matters. People can visit the program’s section on the Judicial Branch website to look for legal centers within their respective areas that can accommodate their concerns. However, the program does not grant attorney referrals or provide legal representation.

Montana Law Help

Montana Law Help is a project of the Montana Legal Services Association that helps state residents in civil cases. Its website offers access to self-help resources that cover numerous legal topics, including probate and estate planning. Additionally, it lets users download legal forms that they can use for their respective cases. Eligible Montanans may also apply for free legal aid or submit questions that are answered by volunteer attorneys.