State Bar of Montana

Wills and Probate

Who can make a will? Generally, anyone 18 or older can make a will. To make a valid will, you must be "of sound mind" which means that you understand such things as the general nature and value of your estate, the people who would be the natural objects of your affection, and to whom you are leaving your estate in your will.

Who should make a will? Every adult who has or expects to have any accumulation of property or who has a spouse or children should have a properly prepared will. If you have remarried at least once and have children from a former marriage or if you have no close relatives, a will is especially important to assure your wishes are followed when your property is distributed. Everyone, whatever his or her circumstances, should seriously consider making a will.

What is a will? A will is a written legal document. In a will, you can do such things as:

  • Name the people and organizations that you choose to receive your property - both personal property and real estate.
  • Name the person you wish to be guardian for your unmarried children under 18, and disabled children over 18, in the event there is no surviving parent.
  • Name your "personal representative" (the person, bank, or corporation that you wish to handle your affairs after your death) and an alternate personal representative.
  • In some cases, avoid or minimize, in a legal way, any taxes your estate or your family may owe.
  • Make special provisions, perhaps by means of a trust, for the care of a family member who may have a special need.
In general, avoid many problems which can occur if you die without a valid will.

What happens if a person dies without a will? If you do not leave a valid will, the court distributes your estate to your relatives in a certain order set out by law. This is called "intestate succession." The law will treat all your property the same. There are no special provisions for heirlooms, jewelry, or the family business. If your legal heirs do not agree among themselves to a specific division of your property, it may be necessary to sell property in order to achieve the distribution of value required by law.

If you do not leave a valid will, your property will pass to your spouse, children, or both, but the shares they take depend on whether either you or your spouse have children of a previous marriage, whether you have surviving parents, and the size of your estate. If you are not survived by a spouse or child, your estate will pass to your next of kin, or if you have none, to the State of Montana. These 'default' provisions may be overridden by a valid will.

If you do not leave a valid will, your children will receive their inheritance no later than the age of 21, which, in many cases, may be too young. If you do not name a guardian in your will and if there is no surviving parent, the court will appoint a guardian for your minor or disabled children. This may not be the person you or your spouse would have wished.

What is probate? The term "probate" generally refers to the entire process of administering the estate of a deceased person. By statute, your personal representative has certain duties and powers, obligations and liabilities with respect to the administration of your estate. In general, your personal representative must account for all of your property, notify your heirs and beneficiaries, collect debts owed to you, pay your debts and taxes, and then give the rest of your property to those named in your will or to those who should receive it under the laws of intestate succession, whichever is applicable. Your will controls the disposition of your probate assets. Examples of assets that are controlled by other documents would include retirement benefits, life insurance proceeds, joint tenancy assets and Payable on Death [POD] and Transfer on Death [TOD] accounts. Your will should be coordinated with these other documents to assure that your estate is disposed of in the manner that you desire.

Who should prepare a will? You can legally prepare your own will. Your will may be handwritten. This type of will is called a holographic will. In Montana your handwritten will must be signed by you as must the material provisions of the will. No witness is needed for a handwritten will. Because the laws which affect wills are very complex, it is usually advisable to have a lawyer prepare your will. This need not cost a great deal for a simple will. If your estate is large, it may well be worth the cost of having a more complex will. A lawyer can give you an estimate of what your will might cost. "Form" wills, or "homemade" wills may prove to be invalid or unclear and could possibly lead to litigation.

Can a will be revoked or changed? Yes. A will may be revoked or changed at any time by the maker. Very specific legal requirements must be met in order for the revocation or changes to be effective. An amendment to the will normally is referred to as a codicil.

Can life insurance substitute for a will? No. Life insurance policies deal only with the proceeds payable to the beneficiaries under the policy and generally are not controlled by your will. Life insurance trusts are sometimes used to assure desired use of insurance proceeds and for estate tax savings.

Can joint tenancy substitute for a will? Joint tenancy is a form of property ownership in which a husband and wife or others own property jointly with the rights of survivorship. This means that when one joint tenant dies, the property will pass automatically to the surviving joint tenants, subject to filing an inheritance tax return and paying inheritance tax liability, if any. Your will has no control over property which you own as a joint tenant with others. This may be useful in some situations, but may also cause unnecessary taxes. It is not advisable for all situations. Joint tenancy disposes only of that particular property. It makes no provision for anything else. Payable on Death [POD] and Transfer on Death [TOD] accounts also are a means of transferring property to a surviving designated beneficiary. POD and TOD accounts operate very much like joint tenancy, but the beneficiary has no interest in the affected property while you are alive. As with joint tenancy, these forms of holding property may be useful in some situations, but also may unnecessarily create tax liabilities, and accordingly should be used only professional guidance in appropriate circumstances.

What considerations should you have in mind when making or changing your will?

  • Who should be your personal representative and alternate personal representative?
  • Who should receive your property?
  • Who should be named guardian of your minor or disabled children?
  • Should a trust be created for your spouse or children?
  • Has your marital status changed since you last made a will?
  • Has the amount or nature of your assets changed significantly since you last made a will?
  • Should you plan for estate or inheritance taxes?
  • Have any intended beneficiaries of your estate died or had material changes in circumstances?
  • Have you had or adopted a child since you made a will?
  • Have the probate laws or estate or inheritance tax laws changed since you made your will?
  • Should you change the guardian or personal representative named in your will? A previous choice may no longer be appropriate.
  • Have you changed your state of residence since your last will was made?

What else should you consider in addition to making a will?

  • What if you should become incapacitated by illness or injury? By signing a durable power of attorney, you can appoint someone to act for you without the time or expense of a court proceeding. There are limitations, however.
  • What if you should become terminally ill and be kept alive only by medical treatment designed to sustain your life processes? You may choose to sign a "right-to-die" statement. Whatever your choice, it may be a great comfort to your loved ones to tell them of your wishes.
  • How should you provide for disposition of your personal effects? Under Montana law, instead of listing these in your will, you may refer in your will to a separate written statement or list which describes the items and names the person who is to receive each item. The statement or list must either be in your handwriting or be signed by you, must be referred to in your will, and it must be reasonably clear, but it may be created or changed after the will is signed. Thus, it is a very convenient means of distributing such property and it allows you to change your mind.

Last updated June 2005  

This information is intended to inform you about Montana law generally. It is not intended as advice. You are encouraged to speak to an attorney regarding the specifics of your situation. A person who is a resident of or who owns property in another state should consult the laws of that state.


Lawyer Referral & Information Service. If you need legal assistance and do not know an attorney, call the Montana Lawyer Referral & Information Service. You will be referred to a lawyer appropriate to your location and problem. Call 406-449-6577.

For more information on Estate Planning for Montanans, see: www.MontanaLawHelp.org and from the Montana State Library.

Fore more legal information, see the following web sites:
www.montanabar.org
www.MontanaLawHelp.org
www.agingwithdignity.org

 

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