Probate Shortcuts in Montana

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, Montana offers two probate shortcuts for "small estates." If the property you leave behind at your death is below a certain amount, Montana allows the property to be transferred more quickly and with less hassle. In other words, if your estate qualifies as "small," your loved ones may be able to use simplified probate procedures, or even skip probate entirely.

Collecting Property With a Small Estate Affidavit

Montana offers a procedure that allows inheritors to skip probate altogether. To qualify, the estate (the property you own at death) must meet these requirements:

• the value of all property can't exceed $50,000
• there's no real estate (or if there is, the real estate was owned as a joint tenancy), and
• at least 30 days have elapsed since the death.

Mont. Code Ann. § 72-3-1101.

If your estate meets the requirements listed above, all your inheritor has to do is sign a simple document under oath, called an Affidavit for Collection of Personal Property of Decedent. The affidavit must include certain information, such as:

• statements that the estate fulfills each of the requirements listed above
• descriptions of the property being collected, and
• a statement that the person using the affidavit is entitled to the property described.

After signing the document (and swearing to its truthfulness) and having it notarized, the inheritor simply presents the affidavit to the person or institution holding the property—for example, a bank where the deceased person had an account. The inheritor will usually also need to provide a certified copy of the death certificate. After that, the person or institution releases the asset. This process skips probate court entirely.

Simplified Probate: Summary Administration

Another probate shortcut that Montana offers is a simplified probate process for small estates, called "summary administration" (or "summary probate"). Unlike the affidavit procedure discussed above, summary administration does not allow your survivors to skip probate. However, the probate process is much more streamlined than full probate, saving time, probate fees, and potentially lawyer fees.

You can use summary administration in Montana if the value of the entire estate, less liens and encumbrances, does not exceed the value of the:

• homestead allowance (a set amount a surviving spouse or children are entitled to under Montana law)
• exempt property allowance (same)
• family allowance (a set amount that a surviving spouse or children that the deceased person was supporting are entitled to under Montana law)
• costs of administration (costs of probate)
• reasonable funeral expenses, and
• reasonable and necessary medical expenses of a last illness.

Mont. Code Ann. § 72-3-1103. So what does all this mean? It's tricky not to have an exact dollar amount to compare against the size of your estate, but it really depends on your circumstances—for example, whether you leave behind a spouse and/or children. Some of these amounts also change each year to match cost of living adjustments.

The bottom line is that if the size of your estate doesn't exceed these amounts, which can be set aside from your estate by law, your executor or personal representative can wrap up your estate in probate court very quickly because there aren't any remaining assets after these amounts are paid out.

The executor or personal representative completes a closing statement that says:

• the value of the entire estate was less than the amounts listed above
• the personal representative has distributed the assets to the inheritors, and
• the personal representative has given a copy of the closing statement to the inheritors and known creditors who might have claims against the estate.

Mont. Code Ann. § 72-3-1104.

For More Information

For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).

For more on Montana estate planning issues, see our section on Montana Estate Planning.