What Types of Probate Are Used in Montana?

Following a person's death, the property and belongings of that person must be dealt with in accordance with Montana law probate law. This process follows the procedure called probate, which enables someone to carry out and pay the debts of a decedent's estate and distribute the property to the correct heirs. The process of probate can either be informal or formal and typically depends on the facts and circumstances of the case. Understanding how probate works will help families prepare and navigate the process to reduce problems after the person dies.

Informal Probate – The Most Common Process

In Montana, the most simple process is the informal process to settle an estate. This option is feasible, assuming that there are no disagreements between the heirs and there are no issues with the Will.

A petition is filed to the clerk of the district court to be appointed personal representative of the estate. The petition can be filed at least 120 hours (five days) after the decedent dies, as long as it is within reasonable time.

Assuming there are no defects with the petition, the clerk will appoint the personal representative without a court hearing. Once appointed, the personal representative collects the decedent’s property, pays the decedent’s debts, and distributes the property to the heirs. Because the informal process does not require any court oversight, it is usually faster and less expensive. The personal representative should still comply with the laws so that there are no legal issues after the estate is settled.

Formal Probate – When Court Involvement Is Necessary

When issues arise, formal probate is necessary. Formal probate includes the need for a judge and court hearings. Here are some reasons probate will be needed:

The validity of the Will is in question.

There is a disagreement about who should manage the estate.

Family members dispute how the property should be distributed.

Anyone challenging the will must prove to the court that the testator (the person who made a will or created a trust) was not of sound mind, was under duress, or was misled to draft the will.

A judge listens to both parties—and their lawyers—the determination is made as to the validity of the will. This process will take time and require legal fees. Probate provides additional protection for the beneficiaries and heirs in order to ensure the estate is handled correctly, however, it can take longer than informal probate because of the court appearances.

Closing of the Estate – Two Options

After all debts are paid, the assets have been distributed, and the estate needs to be closed. Closing may be done in two methods:

Informal Close – The personal representative files final papers with the court and provides notice to the heirs. If no one contests, the estate will close without a hearing. This is the most common method.

Formal Close – A judge reviews the case, ensures it is complete and issues an order for the estate to be closed. A formal close is done if there is a necessity for additional protection.

Avoiding Probate – Small Estates and the Affidavit Process

Not every estate requires probate. For example, if the total value of someone’s assets (with debts deducted) is less than $100,000, their heirs can request payment on the property using a simple affidavit within 30 days of the person's death.

The heir who wishes to take possession must sign a sworn statement (affidavit) and present it to the bank, business, or other third parties holding the deceased's assets. If there is not an active case of probate ongoing at the time when the affidavit is presented, then the property simply transfers, without any court involvement.

Using this process saves time and money, which is common for small estates. However, it cannot be executed once a personal representative has been appointed.

The Role of an Estate Planning Lawyer

Probate can be confusing - especially in more complex cases, and a good estate planning lawyer Columbia lawyer can help families understand their options and avoid common pitfalls. Whether a person is planning their own estate or dealing with a loved one's estate after death, an attorney can help make the process go more smoothly.

Learning about Montana's probate system can prepare families for the future. Informal probate is the simplest approach, but formal probate may be involved when there are disputes, and small estates can usually be resolved by way of an affidavit. By knowing about these various approaches, people can make educated decisions about their estates. If ever in doubt about which is the best way to approach an estate, it can be very helpful to have a lawyer who specializes in this to ease one's mind and make sure the process runs smoothly.