Montana Probate and Estate Tax Laws

When a person dies, with or without a will, their estate typically goes through probate. Probate is the administrative process of settling a deceased person's estate. Many states, including Montana, have adopted the Uniform Probate Code (UPC) in an attempt to standardize and simplify the probate process. This article outlines some key provisions of Montana's probate laws under the UPC.

Probate proceedings determine the validity of and interpret the deceased's will (if there is one), collect the deceased's assets, pay any applicable debts and taxes owed by the estate, and distribute the deceased's property. If the deceased died testate (with a valid will), then the estate is distributed according to the provisions in the will. However, if there isn't a valid will, then the estate passes according to Montana's laws of intestate succession.

Code Section

Montana Code section 72-2-1: Intestate Succession

What Does the Surviving Spouse Receive?

The entire intestate estate if:

No descendant or parent of the deceased survives the deceased, or
All of the deceased's surviving descendants are also descendants of the surviving spouse and there is no other surviving descendant of the surviving spouse

The first $200,000, plus three-fourths of any balance of the intestate estate if:

No descendant of the deceased survives, but a parent of the deceased survives

The first $150,000, plus one-half of any balance of the intestate estate if:

All of the deceased's surviving descendants are also descendants of the surviving spouse and the surviving spouse has at least one surviving descendant who isn't a descendant of the deceased

The first $100,000, plus one-half of any balance of the intestate estate, if:

One or more of the deceased's surviving descendants are not descendants of the surviving spouse

What Do the Other Heirs Receive?

Any part of the intestate estate that doesn't pass to the deceased's surviving spouse (or the entire estate if the deceased doesn't have a surviving spouse) passes in the following order:

To the deceased's descendants
To the deceased's parents
To the deceased's aunts and uncles
To the deceased's grandparents, or
To the deceased's closest kin

Property that Passes Outside of Probate

Not all property is required to pass through the probate process. Examples of non-probate property include; property held in joint tenancy, property held in a trust, life insurance policies with named beneficiaries, payable-on-death bank accounts, assets held in a pension plan, and retirement accounts with a named beneficiary. Because probate can be expensive and time consuming, it is advisable to avoid probate where possible. For more information see FindLaw's section on avoiding probate.

The Estate Tax

An estate tax is the right of a deceased person to transfer property upon their death. However, Montana doesn't collect an estate tax for deaths occurring after December 31, 2004.

Additional Resources

State laws change frequently. For case specific information regarding Montana's probate and estate tax laws contact a local estate planning lawyer or tax attorney.