|Wills and Probate|
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:
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?
What Else Should You Consider in Addition to Making a Will?
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.