Making a Will in Montana

Steps to Create a Will in Montana

Here's a quick checklist for making a will in Montana:

1. Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.
6. Make your will.
7. Sign your will in front of witnesses.
8. Store your will safely. (Montana allows you to deposit your will with the court during your lifetime, if you would like. Your will is kept confidential and no one will have access to it except you and anyone you authorize Mont. Code Ann. § 72-2-535.)

Why Should I Make a Montana Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

• leave your property to people or organizations
• name a personal guardian to care for your minor children
• name a trusted person to manage property you leave to minor children, and
• name a personal representative, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Montana Will?

In Montana, if you die without a will, your property will be distributed according to state "intestacy" laws. Montana's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in Montana?

No. You can make your own will in Montana, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or you have especially complicated goals, you should talk with an attorney. See Do I Need an Attorney to Make My Estate Plan?

What Are the Requirements for Making a Will in Montana?

To make a will in Montana, you must be:

• an individual 18 years of age or older, and
• of sound mind. Mont. Code Ann. § 72-2-521.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. Montana does permit handwritten wills (Mont. Code Ann. § 72-2-522), but they are usually not a good idea.

How Do I Sign my Montana Will?

To finalize your will in Montana:

• you must sign or acknowledge your will in front of two witnesses, and
• your witnesses must sign your will within a "reasonable time" after you sign or acknowledge your will. Mont. Code Ann. § 72-2-522.

Although Montana allows "interested" witnesses who stand to inherit something in the will to serve as witnesses, it's usually best to use witnesses who aren't beneficiaries of the will. Mont. Code Ann. § 72-2-525. This can help you potentially avoid any claims that your witnesses coerced you into signing the will.

Holographic (handwritten) wills do not require witnesses. Mont. Code Ann. § 72-2-522. To make a holographic will, your signature and all material provisions of your will must be in your own handwriting. Mont. Code Ann. § 72-2-522.

Do I Need to Have My Will Notarized?

No, in Montana, you do not need to notarize your will to make it legal.

However, Montana allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. Mont. Code Ann. § 72-2-524.

Should My Will Name a Personal Representative?

Yes. In Montana, you can use your will to name a personal representative who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your personal representative that generally explains what the job requires. If you don't name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In Montana, you may revoke or change your will at any time. You can revoke your will by:

• burning, tearing, canceling, obliterating, or destroying all or part of the will with the intent to revoke it
• ordering someone else to burn, tear, cancel, obliterate, or destroy all or part of your will in front of you, or
• making a new will that says it revokes the old will or that has contradictory terms to the old will. Mont. Code Ann. § 72-2-527.

If you have more than one will but it's not clear if you revoked the old one, your old will is revoked if the wills have contradictory terms and it was your intent to revoke the old will. Montana law presumes you intended to replace your old will with the new one if you disposed of all of your estate in your new will. If you didn't dispose of all of your estate, Montana law presumes you only wanted your new will to add to the old one. In this situation, your executor should follow the instructions in both wills. If you have a contradictory term in your wills, your executor should follow the instructions in the new will. Mont. Code Ann. § 72-2-527.

If you and your spouse divorce (or if a court determines that your marriage is not legal), Montana law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule applies to your spouse's relatives as well – after you divorce their relative, they will not receive any property through your will nor will they be named as executor. However, if you happen to remarry your ex or if you specifically state in your will (or divorce decree) that divorce should not affect the provisions in your will, then these rules won't apply. Mont. Code Ann. § 72-2-814. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Montana currently doesn't allow e-wills, but that may change in the future.

Where Can I Find Montana's Laws About Making Wills?

You can find Montana's laws about making wills here: Montana Code Annotated Title 72 Estates, Trusts, and Fiduciary Relationships Chapter 2 Uniform Probate Code - Intestacy, Wills, and Donative Transfers Part 5 Wills, Will Contracts, and Custody and Deposit of Wills.