Heir Rights (MT)

Updated Jul 8, 2024
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As an heir, you likely have questions about the inheritance process in MT, and your rights.

Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).

Rights Under MT Probate

Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.

However, MT estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.

Your rights as an heir include:

  • Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
  • Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
  • MT Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see MT Family Entitlement details for your state).
  • Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
  • Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
  • Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.

Additional considerations:

  • Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See MT Rules of Inheritance for details.
  • Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
  • Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
  • Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.

MT Small Estate Rights

Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.

In Montana, small estates can completely bypass probate via small estate affidavit, or simplify it via summary administration. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.

Small Estate Affidavit

If a Montana estate has a gross value <$100,000, you can use the small estate process to settle the estate with no court involvement.

Requirements

To use the small estate process, the following conditions must be true:

  • The entire probate estate has a gross value <$100K
  • At least 30 days have passed since the death
  • No petition has already been made to the court to officially appoint a personal representative

In determining the gross value of the estate, you should value assets as of the date of death, and ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

To use the small estate process:

  1. Prepare a Small Estate Affidavit - it may be helpful to attach a copy of the death certificate and the will (if one exists)
  2. Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
  3. Settle the estate in the normal way (pay obligations, distribute remaining assets)
  4. If you are transferring a vehicle, file Form MV12 with the Motor Vehicle Department
  5. If everything goes smoothly, no court involvement will ever be required

See MT Code § 72-3-1101.

Summary Administration

Summary Administration (also known as simplified probate) can be used for somewhat larger estates, or if you simply want court involvement so that enforcement and protection are a bit more formalized.

Requirements

You can use summary administration if the estate is worth less than the sum of:

  1. The value of any homestead allowance, exempt property, and family allowance
  2. Estate administration expenses
  3. Reasonable funeral expenses
  4. Reasonable and necessary medical and hospital expenses of the last illness

In determining the value of the estate, you should value assets as of the date of death, and subtract any secured debts such as liens or mortgages (but ignore unsecured debt such as credit card debt). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

To settle an estate via summary administration:

  1. Submit to the court an application for informal probate of will (or if none, submit an application for informal appointment of represenative
  2. Upon approval, the court will issue you "Letters" giving you authority to act as the estate personal representative
  3. Submit an estate inventory to the court (consider using an EstateExec Inventory Report)
  4. Use your "Letters" to collect estate assets, then disburse according the priority order listed in the Requirements above
  5. Prepare a final accounting (consider using an EstateExec Final Accounting Report)
  6. Prepare a closing statement (see below) and send it to all unpaid creditors and to all distributees, also providing a copy of the final accounting to any distributees whose interests were affected
  7. Submit a closing statement to the court (see below)
  8. If actions or proceedings involving you as the personal representative are not pending in the court 1 year after the closing statement is filed, your appointment as personal representative terminates

Closing Statement

A closing statement must contain the following statements:

  • To the best of your knowledge, the value of the entire estate did not exceed the items listed under Requirements above (list each requirement)
  • You fully administered the estate by payment of any required estate taxes and by disbursing and distributing it to the persons entitled to it
  • You sent a copy of the closing statement to all unpaid creditors of whom you are aware, and to all distributees, also providing a copy of the final accounting to any distributees whose interests were affected

See Informal Probate MT Code § 72-3-201 et seq, Summary Administration § 72-3-1103, and Closing Statement § 72-3-1104.

Estate Settlement Considerations

Before paying any debts or making any distributions, be sure to account for any Family Entitlements in MT, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

Even if the estate does not go through probate, you may still be entitled to MT Executor Compensation, and this compensation also has priority over most estate debts.

Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow MT probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

Court

In Montana, the local District Court handles wills and estate matters.

Estate Debts

Finally, note that as an heir, you are NOT responsible for paying the debts of the MT estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.

If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.

Additional Information

For more information about inheritances in general, see EstateExec Heir Guide.

In case you're interested, heir rights in other states can be found here:

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