Probate for Small MT EstatesShow Table of Contents
In Montana, small estates can completely bypass probate via small estate affidavit, or simplify it via summary administration.
Small Estate Affidavit
If a Montana estate has a gross value <$50,000, you can use the small estate process to settle the estate with no court involvement.
To use the small estate process, the following conditions must be true:
- The entire probate estate has a gross value <$50K
- 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 rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To use the small estate process:
- Prepare a Small Estate Affidavit (Form AF-102) - it may be helpful to attach a copy of the death certificate and the will (if one exists)
- Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
- Settle the estate in the normal way (pay obligations, distribute remaining assets)
- If you are transferring a vehicle, file Form MV12 with the Motor Vehicle Department
- If everything goes smoothly, no court involvement will ever be required
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any MT Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
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.
See MT Code § 72-3-1101.
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.
You can use summary administration if the estate is worth less than the sum of:
- The value of any homestead allowance, exempt property, and family allowance
- Estate administration expenses
- Reasonable funeral expenses
- 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 rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To settle an estate via summary administration:
- Submit to the court an application for informal probate of will (or if none, submit an application for informal appointment of represenative
- Upon approval, the court will issue you "Letters" giving you authority to act as the estate personal representative
- Submit an estate inventory to the court (consider using an EstateExec Inventory Report)
- Use your "Letters" to collect estate assets, then disburse according the priority order listed in the Requirements above
- Prepare a final accounting (consider using an EstateExec Final Accounting Report)
- 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
- Submit a closing statement to the court (see below)
- 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
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
In Montana, the local District Court handles wills and estate matters.
See also General Probate.