You work hard to earn your money and spend it how you see fit. When we die, we have the right to give our wealth to the people we want. We do this by writing a valid will to transfer our money and property to the people we deem appropriate.
Jump ahead to these sections:
- Montana's Intestacy Laws Explained
- How Does Probate Work in Montana If There Is No Will?
- Who Typically Inherits Assets in Montana If There Isn't a Will?
- Frequently Asked Questions: Dying Without a Will in Montana
However, many Montanans do not exercise this right and die without a will. This article explores what happens if you die without a will in Montana.
Montana's Intestacy Laws Explained
When we do not designate beneficiaries in a valid will, it is unclear who becomes the new owners and managers of our valuables, property, and money after we die. The state has default rules, called intestacy laws, to determine who these people should be.
Under Montana's intestacy laws, the beneficiaries of your assets will be as follows:
- Everything goes to your surviving spouse if you have no surviving children, grandchildren, or parents.
- Everything also goes to your surviving spouse if you do have surviving children, but that spouse has no other surviving children from a different partnership.
- If you have a surviving spouse and surviving children with that spouse, and they also have one or more children who are not legally yours, your spouse gets $225,000, plus half of the balance of your assets, and your children split the remainder of your assets.
- If you have a surviving spouse and surviving children, one or more of whom are not also children of the surviving spouse, your spouse gets $150,000, plus half of the balance of your assets, and your children split the remainder of your assets.
- If you have a surviving spouse and surviving parents but no children, your spouse gets $300,000, plus three-quarters of the balance of your assets, and your parents get the remainder.
- If you have children or grandchildren and no surviving spouse, they inherit everything.
- If you have no children, grandchildren, or spouse, your parents get everything.
- If you have no spouse, children, parents, or siblings, half of your assets go to your surviving paternal grandparents and half to your surviving maternal grandparents. If you have no surviving grandparents on one or both sides, the descendants of those grandparents (potentially your aunts and uncles) inherit everything.
Montana's intestacy laws use the concept of "representation" to divide assets among the people who can inherit them. The following example can explain representation:
Valerie dies, survived by two of her three children, Diana and Greg, and a grandson, Max. Max is the only child of Valerie's other child who has already passed, Tom. Diana, Greg, and Max will each receive one-third equal share of Valerie's assets – Max inherits one-third by representation from his deceased father, Tom.
In addition, if you die without a Will in Montana, the following order of priority decides who will manage your assets:
- If you are a minor, the parent or parents who have custody of you.
- Your surviving spouse.
- Your parent, if all your children are still minors.
- Any other family members who may be eligible to inherit.
- The public administrator.
- Forty-five days after your death, any creditor.
How Does Probate Work in Montana If There Is No Will?
Probate is a legal process that provides steps to transfer your assets after death to your inheritors. A judge supervises probate to avoid fraud. Probate can sometimes happen even if you have a will.
Probate in Montana begins with the supervising judge appointing a person known as the personal representative to manage the process.
The personal representative has various duties concerning your assets and estate, including:
- Completing an inventory of your assets.
- Collecting and maintaining your assets, including establishing an estate bank account.
- Publishing required notice (according to Montana law) to creditors.
- Paying any outstanding debts to creditors.
- Filing any necessary tax returns.
- Distributing the remaining assets to your beneficiaries.
After the personal representative completes these steps, they appear before the supervising judge to close the probate.
There are three types of probate in Montana: informal, unsupervised formal, and supervised formal. Informal probate involves the least amount of judicial supervision. If things get complicated, supervised formal probate may be the best way to proceed.
Who Typically Inherits Assets in Montana If There Isn't a Will?
If there is no will in Montana, the persons who typically inherit assets are the close family members described above: a spouse, children or grandchildren, parents, siblings, grandparents, and aunts or uncles.
In some situations, Montanans do not want their assets to transfer in the manner set by Montana's laws. For example:
- Allison dies, leaving behind her mother, Kate, and her boyfriend, Alex. Allison wants to leave everything to Alex but does not execute a will. Under Montana's intestacy laws, Kate will inherit all of Allison's assets, contrary to Allison's wishes.
- Doug dies, survived by his daughter, Rhonda. Doug wants to donate half his assets and leave the other half to Rhonda. However, because Doug did not leave a will, Rhonda will inherit everything under Montana's intestacy laws.
- Manny dies, survived by his wife, Natalie, and son, Caleb. Caleb is Natalie's only son. Manny wants to leave half his assets to Natalie and half to Caleb. Under Montana's intestacy laws, Natalie will inherit everything.
- Gladys dies, survived by her two children, Helena and Stephanie. Gladys wants to transfer her assets to equal trusts for Helena and Stephanie, with Gladys' brother, Charles, as trustee of each trust. Gladys also intends to lay down specific rules governing giving out money from those trusts. Under Montana's intestacy laws, Helena and Stephanie are the equal beneficiaries of Gladys' assets, but "outright" and not in trust, meaning they will receive the money directly.
In each of these four examples, failing to write a will means the person didn't make their post-death wishes known, so the state law took over as default.
It is not difficult to execute a valid will in Montana. You need to do three things:
- Write a document.
- Sign the document.
- Have two independent witnesses witness you signing the document and sign it themselves.
Had Allison, Doug, Manny, and Gladys followed these steps, they could have accomplished their goals.
Frequently Asked Questions: Dying Without a Will in Montana
Here are a few frequently asked questions about what happens if you die without a will in Montana.
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What happens when your parent dies without a will?
When your parent dies without a will in Montana, how much you stand to inherit depends on a few particular facts.
If your parent has no surviving spouse, you and any other surviving descendants are the sole beneficiaries.
If your parent does have a surviving spouse and that spouse has no other children from a different partnership, you are likely not a beneficiary.
If there is a surviving spouse and that person does have a child from a different partnership, the surviving spouse gets $225,000, plus half of the balance of your parent's assets. You and any other surviving descendants of your deceased parent will split the rest.
If your parent does leave behind a spouse, and you and your siblings are not descendants of the surviving spouse, the surviving spouse gets $150,000 plus half of the balance of your parent's assets, and you and your siblings split the rest.
The amount you get is always determined by how many other inheritors come before or beside you in line. For example, if you are one of four children and your parent who just passed does not leave a surviving spouse, you get one-fourth of your parent's assets.
What are a surviving spouse's rights if there's no Will?
A surviving spouse's rights can vary based on the specific family situation.
For example, if a person has no surviving children or parents, OR, all surviving children are from the surviving spouse, AND at the same time, that spouse has no other children, the surviving spouse gets everything.
If all of the deceased's children are descendants of the surviving spouse, and the surviving spouse has one or more children from a different partnership, the surviving spouse gets $225,000 plus one-half of the rest of the assets.
If one or more of the deceased's children are not descendants of the surviving spouse, the surviving spouse gets $150,000, plus one-half of the rest of the assets.
If the deceased has a surviving spouse and at least one surviving parent but no surviving children, the spouse gets $300,000, plus three-quarters of the assets.
Are there any probate exemptions if you die without a Will in Montana?
There are several important probate exemptions in Montana.
If you get a small estate affidavit in Montana, you can transfer up to $50,000 of personal property without probate.
Property like a life insurance policy or an individual retirement account (IRA), which has to designate a beneficiary, can transfer to the designated person without probate.
Property owned as jointly with rights of survivorship can transfer to the surviving person named as a joint tenant without probate.
Property owned in a trust (such as a revocable "Living Trust") can transfer based on the trust's provisions without probate.
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How long does probate take when there is no Will?
In Montana, probate generally takes from six to 10 months. However, if things get complicated, it could take much longer. Especially if there is no will, probate may take longer because there may be uncertain issues that the supervising probate judge needs to decide.
Who is considered next of kin in Montana?
There is no formal definition of "next of kin" under the Montana Probate Code. However, suppose there is no surviving spouse, children, grandchildren, parents, siblings, grandparents, or aunts or uncles. In that case, the next beneficiary under Montana's intestacy laws is "the person of the closest degree of kinship with the decedent."
Execute a Valid Will to Control How Your Wealth Transfers on Death
In Montana, we have the right to use the income that we earn during our lifetime as we see fit. We also have the right to transfer the wealth we accumulate during our lifetime as we see fit when we die.
We wouldn't want the state to decide how we can use our money when we're alive. Similarly, we should not be happy to let the state decide how our wealth should be distributed after death.
Executing a valid will in Montana will help you retain control of how your wealth should transfer on death.