Montana State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

• Montana Code Annotated
• Probate jurisdiction rests with the District Court (Section 3-5-302)
• Probate laws are primarily under Title 72

Minimum age requirement to:

• Distribute property by will: 18 (Section 72-2-521)
• Which minor gets property: 21

Holographic will recognized (Section 72-2-522)

State taxes:

• Estate tax: Equal to federal credit for state death taxes (Section 72-16-904)
• State gift tax:Inheritance tax: No inheritance tax (Section 72-16-904)
  • No state gift tax (Section 72-16-904)
  • Anatomical Gift Act (Section 72-17-101)
• Inheritance tax: No inheritance tax (Section 72-16-904)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section72-2-112 to 72-2-113)

• No surviving spouse, but there are surviving children:
  • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
• Surviving spouse and
  • Children of surviving spouse:
    • All of your estate will pass to your spouse
    • Children not of the surviving spouse (for example your children from a previous marriage):
      • If only one surviving child, then one-half (1/2) of your estate to the surviving spouse, and the other one-half (1/2) to your surviving child
      • If there is more than one surviving child, then one-third (1/3) of the balance of your estate to your spouse, and the other two-thirds (2/3) to your children
      • No children and both of your parents of deceased:
        • All of your estate will pass to your spouse
      • No children, but at least one of your parents survives you:
        • All of your estate will pass to your spouse
• At least one parent survives you, but no surviving spouse or children:
  • All of your estate will pass to your surviving parents equally
• No spouse, children, or parents:
  • Siblings (brothers and sisters) equally or to their children in according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents or their children according to their per stirpes share and the other one-half (1/2) to paternal grandparents or their children according to their per stirpes share. If none, then to your spouse’s next of kin

Who must be named as a beneficiary in your will:

• Surviving spouse (Section 72-2-332), andChildren, born or adopted (Section 72-2-221)
  • Surviving spouse must be given:
    • Elective share of your “augmented” estate; “augmented” means:
      • If married for less than one year, then “augmented” can range from a “supplemental amount” ; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 72-2-221)
      • If married for one-two years, then “augmented” can mean three percent of the estate; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 72-2-221)
      • If married for over fifteen years, then “augmented” can mean up to 50 percent of your estate; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 72-2-221)
• Children, born or adopted (Section 72-2-221)

Effects of changes in your marital status on your will:

• You are divorced from the surviving spouse:
  • Revokes will as to divorced surviving spouse (Sections 72-2-528 and 72-2-814)
• You get married without changing your will that does not provide for your new spouse:
  • Revokes will as to spouse, unless will expressly provides for spouse, but spouse may still be entitled to shares under state intestate law (Section 72-2-331)

Witnesses:

• Minimum number of witnesses required: Two (Section 72-2-522)
• Are witnesses allowed to be beneficiaries?: Yes (Section 72-2-525)
• Requirements to be a witness, witnesses must:
  • be an adult, and
  • not be your appointed healthcare agent

Property ownership (Section 40-2-105 and Section 70-1-310):

• Common law state
• Tenancy in common is called interests in common, and is presumed unless a joint tenancy is state
• Joint tenancy is called joint interests
• Bank account deposits held jointly are payable to any survivor named in the bank account
• Tenancy by the entirety is not recognized in this state for personal property

Other types of wills:

• Self-proving wills recognized: Yes, recognized (Section 72-2-524)
• Living will: Montana Declaration (Section 50-9-103) requires an incurable disease or irreversible medical condition which, without the use of life support, will result in death in a relative short period of time, or you are in a permanent coma or persistent vegetative state
• Appointment of Health Care Agent is included in Montana Declaration (Section50-9-103)
• Durable Power of Attorney (Section 72-5-501)

 

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