Montana Wills

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Writing a Montana Will

How do I make a Will in Montana?

According to Title 72 Estates, Trusts and Fiduciary Relationships,

  • You must be 18 years or older and of sound mind. 72-2-521

 

  • The Montana Will must be in writing and signed by the testator (person making the will) or by someone else at the testator’s direction and presence 72-2-522(1)(a)&(b)

 

 

  • It must be witnessed by at least two persons over the age of 18. 72-2-522(a)(c)

 

Can my spouse witness my Montana Will?

Montana allows Wills to be witnessed by ‘interested persons’ ie: your spouse, adult children or anyone else having an interest in your Will or estate. 72-2-525

Where can I deposit my Will?

Montana Wills can be filed with any court for safekeeping. It will be sealed and kept confidential. Once you die, the court can deliver the Will to a person of your choosing or to the appropriate court. 72-2-535

Holographic Wills

Montana recognizes holographic Wills if the material portions are written in the testator’s handwriting and signed by the testator. A holographic will does not need to be witnessed. 72-2-522(2). However, it is always recommended to comply with the formal execution and witnessing requirements.

Can I change my Montana Will?

Last Will and Testaments can be changed at any time by making a codicil or by making a new Will and revoking all former Wills.

How do I revoke a Montana Last Will and Testament?

  • Destroying it by burning, tearing or cancelling; and

 

  • Making a new Will which expressly revokes all former Wills. 72-2-527

 

Your last Will or parts of it can also be revoked in circumstances such as homicide, divorce or annulment of your marriage. 72-2-528 A revoked Will can be revived if certain conditions are met. 72-2-529

Excluding Spouse or Children from your Montana Will

If you wish to disinherit a spouse or child from your Will, there are several factors you need to consider. The legislation provides various entitlements for family members that have been excluded from the Will. Before proceeding you should contact a qualified attorney experienced in Montana Wills and estates.

Excluding Husband, Wife, Spouse from a Will

If you are a Montana resident and exclude your wife from your Montana Will, or leave them a nominal share, then your spouse is still entitled to each of the following entitlements:

  • Elective share of your augmented estate. The portion depends on the length of your marriage. For example, if you have been married for two years, your spouse’s entitlement is 6%. If the marriage is 10 years, your spouse is entitled to 30%. 15 years or more makes the entitlement 50% of your augmented estate. 72-2-221

 

  • Homestead Allowance – of $20,000. This is in addition to any amount left to your spouse in the Will. If there is no spouse, then this amount will be divided among your minor and dependent children. 72-2-412

 

 

  • Exempt property – including household furniture, automobiles, furnishings, appliances and personal effects up to the value of $10,000. If there is no spouse, then your children are entitled to this value jointly.

 

 

  • Family Allowance – the court may order a reasonable allowance in money out of your estate for the maintenance of your spouse and minor and dependent children. The maintenance allowance can be awarded for the period whilst the estate is being administered (up to one year is there are inadequate funds to pay debts). 72-2-414

 

If you made a Montana Will prior to your marriage without providing for your spouse in that Will, then, depending on the wording of that Will your spouse may be entitled to a share of your estate. The share will be based on the portion he/she would have received if you had died intestate (without a Will) 72-2-331. This portion can be larger than if you had tried to exclude your spouse from the Will after marriage.

Excluding a Son, Daughter, Child or Children

If you have a child after making a Montana Last Will and Testament and fail to mention that child in your Will, then he/she will be entitled to a portion of your estate (72-2-332). You may omit a child or children from inheriting if you clearly express this intention in the Will. However, always speak to a lawyer first to ensure your Will is drafted correctly and to see if there is anything else you need to do.

Montana Probate Process

The probate process has been made easier in Montana with the adoption of the Uniform Probate Code (UPC). An estate can be administered a number of ways: informal proceedings, formal proceedings and supervised administration. These processes require four months’ notice to creditors to file claims for their debts. Small estates can be handled through the Collection of Personal Property by Affidavit or the small estate procedure. A Montana Will must be probated in Montana within 3 years of the testator’s death; exceptions apply. 72-3-122

Delivering the Will

The person who has custody of the original Montana Last Will must deliver it to the executor or to the appropriate court with reasonable promptness. If they wilfully fail to do so, they will be liable to any person who suffers damages as a result. 72-2-536

Informal Proceedings

This procedure is used where an original Will exists. If it appears that the Montana Will was signed and witnessed properly, then the clerk may probate the Will and appoint a personal representative. 72-3-213

Formal Proceedings

Any interested person may file formal testacy proceedings to determine whether a decedent left a valid Montana Last Will and Testament. It is used where there is no Will, if it has been lost, when its validity is questioned or when parties dispute the distribution of assets or appointment of a personal representative. Notice must be given to all other interested persons, including persons who would benefit under intestacy rules, beneficiaries named in the will and creditors. A hearing will be set down before a district court judge. 72-3-302

Small Estates

Transfer by Affidavit: If the value of the estate is $50,000 or less and constitutes only personal property, then a successor of the Montana Will may file an affidavit to claim the decedent’s estate. This application cannot be filed within 30 days of the death. It is available whether the person died with or without a Will. 72-3-101 Summary Administration: Wills need not be probated if the entire estate is under a certain amount. The amount is the sum of $20,000 homestead allowance, $10,000 exempt property, $18,000 family allowance, reasonable administration, funeral and medical/hospital costs and expenses of the decedent’s last illness. The personal representative can administer the estate immediately and then file a closing sworn statement with the court. There is no need for notice to creditors. 72-3-1103

Contesting a Montana Will

A person who contests a Montana Will means they are objecting to its validity. Any interested person is able to contest a Will. Grounds for contesting include lack of testamentary capacity, undue influence, duress, mistake, fraud or revocation of prior Wills. 72-3-310

Penalty for Contesting

If the Will contains a clause which has the effect of penalizing an interested person for contesting the Montana Last Will and Testament, that clause is unenforceable if that person actually had probable cause for instituting proceedings. 72-2-537

Who pays the costs & attorney fees?

If the Will is held valid, the person who contested its validity is liable to pay the costs and attorney fees of the person who defended its validity. If the Will is held invalid, then either the person who opposed the contesting application or the deceased estate (as the court directs) must pay the costs (not attorney fees). 72-12-206 Costs include legal fees of witnesses, publication costs, filing papers and obtaining certified copies and other reasonable and necessary expenses. 25-10-201

What happens if I die without a Montana Will?

What does my wife, husband, spouse get?

If you are a Montana resident and pass away without making a Montana Will, then your spouse’s share will be:

  • If you have no surviving parents or children – everything;

 

  • If you have no surviving parents, but you have surviving children (who are also children of your spouse) – everything;

 

 

  • If you have no surviving children but you have a surviving parent – $200,000 plus ¾ of the balance;

 

 

  • If you have children with the surviving spouse and your spouse also has a child or children to a former partner – $150,000 plus ½ of the balance;

 

 

  • If you have a child or children who are from a former partner – $100,000 plus ½ of the balance. 72-2-112

 

Where does the balance go?

Any amount not inherited by your spouse, will pass to 72-2-113:

  • Your child(ren) or if a child of yours has predeceased, that child’s share will go to his/her children;

 

  • If no children or grandchildren survived you, to your parents or the survivor

 

 

  • If no parents survived you, to your brothers and sisters.

 

Case Studies – dying without a Montana Will: Wife died without a Will. How much does husband and children get? Rita died without a Will. She was married to Karl & had two children with him. Her estate is $200,000, Who gets what? Karl – $200,000. Husband died. No Will. Intestate distribution to wife, children & stepchild: Danny passed away. He did not write a will. He has one child to his wife Nicole. Nicole also has a child from another partner. The estate is worth $200,000. Who gets what? Nicole – $175,000, Danny & Nicole’s Child – $25,000, Nicole’s Child – Nil. Wife died without a Will. Share of husband, children and deceased’s children from prior marriage. Sammy died without a will. She has two children with her husband Aaron and two children from a prior marriage. Sammy’s estate is worth $200,000. Who gets what? Aaron – $150,000, Sammy’s 4 children – $12,500 each.

Montana Will Forms

Before making a Montana Will, we recommend you understand vital information on preparing, signing and witnessing a last Will and Testament. You should also research how to go about:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample will forms available as free downloads (printable PDF documents).

Single-with-Adult-Children
Married-with-No-Children
Married-with-Adult-Children
Single-No-Children
Married-with-Adult-and-or-Minor-Children-+-Trust-for-Minor-Children
Single-with-Adult-and-or-Minor-Children-+-Trust-for-Minor-Children

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