If you die without a will in Montana, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Montana.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
If you die with:
here's what happens:
|children but no spouse||children inherit everything|
|spouse but no descendants or parents||spouse inherits everything|
|spouse and descendants from you and that spouse, and the spouse has no other descendants||spouse inherits everything|
|spouse and descendants from you and that spouse, and the spouse has descendants from another relationship||spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance
your descendants inherit everything else
|spouse and descendants from you and someone other than that spouse||spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance
descendants inherit everything else
|spouse and parents||spouse inherits the first $200,000 of your intestate property, plus 3/4 of the balance
parents inherit remaining intestate property
|parents but no spouse or descendants||parents inherit everything|
|siblings but no spouse, descendants, or parents||siblings inherit everything|
In Montana, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:
If you die with parents but no descendants. Your surviving spouse inherits the first $200,000 of your intestate property, plus 3/4 of the balance.
Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also has $300,000 worth of additional property that would have passed under a will if she had made one. Joe inherits $275,000 worth of that property – that is, $200,000 plus $75,000 worth of the remaining $100,000. Gerry's father inherits $25,000.
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from previous relationships. Your surviving spouse inherits all of your intestate property.
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has other descendants from previous relationships. Your surviving spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance.
Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns a good deal of other property that would have passed under a will, so Karen inherits $150,000 worth of that property plus half of everything else. The remaining half of Bill's intestate property goes to Bill's and Karen's two children.
If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance.
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $150,000 worth of Barrett's property. Barrett's daughter inherits the remaining $50,000 share of Barrett's property.
If you die without a will in Montana, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, whether your children are also your spouse's children, and whether your spouse has children from another relationship. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Montana must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about Montana intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There's No Will.
You can find Montana's intestate succession law here: Montana Code § § 72-2-111 to 72-2-124.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.