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Wills and Probate
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Who Can Make a Will?

Generally, anyone age 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 and/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 their circumstance(s), 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 age 18, and disabled children over age 18, in the event that 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, a will provides a way to avoid many problems that can occur when you die

What Happens if a Person Dies Without a Will?

If you do not have a 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 of your property the same. There are no special provisions for heirlooms, jewelry, or any family businesses. If your legal heirs do not agree amongst themselves to a specific division of your property, then 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 upon whether or not either you or your spouse have children of a previous marriage, whether you have surviving parents, and the overall size of your estate. If you are not survived by a spouse or child, your estate will pass to your next of kin, and if you have no next of kin then your estate will be passed on 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, it can even be handwritten. This type of will is known as a "holographic will." In Montana, your handwritten will must be signed by you. Your signature must also be located on any material provisions, and no witnesses will need to be present for the signing of your will. Because the laws surrounding wills are somewhat complex, it is usually advisable that a a lawyer is utilized to prepare your will. The fees associated with the preparation of the will very depending upon the complexity of your estate. More complex estates will be more costly to prepare. 

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 any inheritance tax liability that may exist. 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(s) 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 effected 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 with 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 names as 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 inheritance tax laws changed since you made your will
  • Should you change the guardian or personal representative named in your will (a previous choice might no longer be appropriate in some circumstances)
  • Have you changed your state of residence since your last will was made

What Else Should You Consider in Addition to Making a Will?

  • Signing a durable power of attorney can appoint a person to act, with certain limitations, on your behalf if you should become incapacitated by serious illness or injury
  • You can choose to sign a "right-to-die" statement which provides your family with what you wish to happen in certain terminally ill situations
  • You can create a statement, or list, which provides for the disposition of your personal effects. This list describes the specific items and names a specific person who is to receive that item. This is a very convenient means of distributing property because it can be created or changed after your will is signed with little to no proceedings needing to be involved. 

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.