Probate in Montana: What Your Family Goes Through Without a Will

Most estates in Montana pass through probate, though a handful of exceptions can circumvent the process. When a deceased does not have a will, this is referred to as intestate succession. While many families do wish to avoid probate, in most cases an estate will go through probate in Montana if there is no will, with a few exceptions.

• Beneficiaries on life insurance policies

• Beneficiaries on retirement accounts

• Payable-on-death or transfer-on-death designations for bank or brokerage accounts.

• Real estate with a recorded transfer-on-death deed.

One other exception can occur if the estate is valued at $100,000 or less (raised from $50,000 in 2023). In this case, you can elect to use a small estate affidavit instead of the full probate proceedings.  

Succession Laws Without a Will in Montana

Understanding who inherits from an estate starts with how Montana classifies property between spouses. Montana is a common law property state. Generally, this means new owners are identified by whose name is on the title, deed, or account. Montana follows the Uniform Probate Code.

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If none of the exceptions above apply, the estate will go through probate and be distributed according to the following lines of succession.

• If you have no descendants and no living parents, your spouse inherits everything.

• If every surviving descendant is also a descendant of your spouse, and your spouse has no other descendants, your spouse inherits everything.

• If every surviving descendant is also a descendant of your spouse, but your spouse has descendants from another relationship, your spouse inherits the first $225,000 of your estate, plus 1/2 of the balance. Your descendants inherit the rest.

• If any of your descendants are not also your spouse's, your spouse inherits the first $150,000 of your estate, plus 1/2 of the balance. Your descendants inherit the rest.

• If you have no descendants but living parents, your spouse inherits the first $300,000 of your estate, plus 3/4 of the balance. Your parents inherit the rest.

• If you have children but no spouse, your children inherit everything, divided equally.

• If you have no spouse and no children, your parents inherit everything.

Montana Probate Process

Montana probate is handled through the District Court in the county where the deceased lived, with informal probate available for most uncontested estates. Montana imposes no state estate or inheritance tax on assets of a decedent. A surviving spouse can also claim an elective share equal to 50% of the marital-property portion of the augmented estate, with the length of the marriage factoring into how that marital-property portion is calculated.

Avoiding Probate in Montana

Probate has a reputation for being slow and costly, so many families look for ways around it. Here are the main options.

• Put your assets in a revocable living trust to identify who handles distribution after your death.  

• Name beneficiary designations on financial and retirement accounts to name new owners for financical and retirement accounts.  

• Identify a beneficiary for real estate to ensure automatic transfer of ownership.  

• Establish joint ownership with right of survivorship to ensure it passes without delay.  

Want to learn more about trusts in Montana? Check out our comparison chart to learn what you get with a will versus a trust.