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What If I Die Without a Will in Montana?

When people die “intestate,” it means they pass without having a will. A probate court follows intestacy state law to see who inherits their property. Under intestate succession, if the decedent has a surviving spouse and children, they receive the estate. If they don’t have a spouse or children, the estate goes to the next of kin, such as parents, siblings, grandparents, etc. If there is no next-of-kin, the state receives the assets.

What Does a Will Do?

A last will and testament is a legal document allowing you to control who handles your estate, how to distribute your property, and who cares for your children. In your will, you can do the following:

• Name a personal representative or executor to administer your estate. They locate your will and assets, submit the will to probate court, and follow the provisions in your will.
• Give away specific items of personal property and real property (real estate)
• Name your loved ones and family members as beneficiaries to inherit the rest of your property
• Appoint guardians for minor children
• Name caregivers for pets and put aside funds for their care
• Make charitable donations

Because you make these decisions in your will, you streamline the probate process, saving your family time and money in probate court.

What Doesn’t a Will Do?

While you can transfer property and assets in your will, other “non-probate” assets transfer differently. For example, transfer-on-death (TOD) bank accounts or life insurance policies transfer to the beneficiaries you name on them. These non-probate assets may include:

• Funds in payable-on-death or transfer-on-death bank accounts
• Proceeds from life insurance or annuities (to named beneficiaries)
• Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
• Property owned in joint tenancy with right of survivorship
• Property owned by trusts, including living trusts and irrevocable trusts

You should check the beneficiary designations on your accounts and policies to make sure they are correct. Also, name a backup beneficiary in case your primary beneficiary dies before you. Any assets or accounts without a beneficiary go into your probate estate.

Who Can Make a Will in Montana?

Under Montana law, the testator (the person making a will) must meet the following requirements.

• Age: A testator is at least 18 years old.
• Sound Mind: A testator is of sound mind, meaning they know what property they own, who their heirs are, that they are making a will, and how a will disposes of their property.

The testator must have a sound mind when they sign their will. Montana residents with concerns about whether they can make a will should consult an estate planning attorney for legal advice.

Does Montana Have a Statutory Will?

No. Montana does not require or provide a state form as your will. You can hire an attorney to draft one or do it yourself with online resources, such as FindLaw Legal Forms and Services, to create a will conforming to Montana law.

What Types of Wills Does Montana Accept?

Most wills are typewritten or printed in paper form and signed by the testator. There are many ways to make a will, but under the laws of the state of Montana, only certain types of wills are acceptable.

• Handwritten Will: A handwritten or holographic will is a will that the testator writes in their own handwriting without any witnesses. Many states prohibit holographic wills. But in Montana, holographic wills are acceptable if the signature and the material portions of the document are in the testator’s handwriting.
• Oral Will: Oral wills are wills spoken aloud by the testator. Montana does not accept oral wills.
• Electronic Will: An electronic will is a will written and stored electronically or signed, witnessed, or notarized through electronic methods. At this time, Montana does not allow electronic wills.

Although you could use a handwritten will in Montana, you may prefer a printed or typewritten will to avoid confusion or mistakes.

Can I Make My Own Will in Montana?

Yes. Montana allows you to make your own will. If you have a simple estate, know what property you own and who you want to receive the property, then you are ready to make your will. You need basic information, such as the names of your personal representative, guardians, and beneficiaries.

The benefit of using a will drafting service such as FindLaw Legal Forms and Services is that you can easily update it when you want. For example, if there is a death of a beneficiary, birth of a child, or divorce, you can revoke your original will and create a new one.

How Do I Make My Will Valid in Montana?

The state of Montana has specific requirements for making a valid will.

• Signature: The testator must sign the will or direct someone to sign it for them in their presence.
• Witnesses: Two competent witnesses must witness the testator signing the will or the testator’s acknowledgment of the testator’s signature. A competent witness is able to act as a witness to a will. Although some states prohibit interested witnesses, which are witnesses who may benefit from the will, Montana allows interested witnesses. Still, you may want to avoid using interested witnesses so your will is not challenged due to claims of undue influence.
• Notary: You do not need a notary for your will. But if you want to include a self-proving affidavit, you need a notary public’s services.
• Self-Proving Affidavit: Montana allows you to self-prove your will with an affidavit. A self-proving affidavit is a statement you and your witnesses sign attesting that you signed the will. This signed and notarized affidavit makes a will self-proving, so your witnesses do not have to testify in court as to the will’s authenticity.

Can I Disinherit My Spouse in Montana?

No. You cannot disinherit your spouse. Unless they waive their rights to your estate through a premarital agreement, a surviving spouse may claim an elective share of your estate. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will.

Can I Disinherit My Children in Montana?

Yes. Under Montana law, your children do not have a right to inherit from you. If you want to disinherit a child, you should state it expressly in your will, or a court may determine you left them out by mistake. If you have or adopt a child after you sign your will, a court may award them an intestate share of your estate as an omitted child.

What Estate Planning Documents Should I Have in Montana?

A will helps those you leave behind. However, other estate planning documents benefit you and your loved ones during your lifetime.

• Power of Attorney. A power of attorney is a document that allows you to appoint someone you trust as your agent to make financial decisions for you. You may want this in the case of incapacity or even for convenience. Your agent has a fiduciary duty to act in your best interest. You determine what powers to grant your agent and when your agent’s authority begins and ends.
• Health Care Directive. A health care directive, or living will, allows you to specify what life-prolonging measures you want if you face a terminal illness or end-of-life condition. In Montana, you can also name a health care agent to make medical decisions for you when you can’t. If you don’t make these decisions in a health care directive, the burden is on your loved ones to make these choices for you.

Fortunately, making a valid will and creating other Montana estate planning documents is easy with online estate planning templates.