A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Montana wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Montana living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, the laws of intestacy determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Montana last will and testament form also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a last will and testament can be effectuated, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
The will of a decedent must be filed with the Clerk of Court so the personal representative may proceed with the administration of the estate.
Montana has both formal (court-directed) and informal probate as well as a simplified probate process for small estates. It may also be possible for beneficiaries to file an affidavit signed under oath stating their entitlement to certain assets.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Montana in the absence of a will, a surviving spouse inherits the entire estate except in two situations:
(1) Decedent has descendants with the spouse and the spouse has other descendants as well: the spouse takes the first $150,000 of the estate plus half the balance.
(2) Decedent has descendants with both the spouse and from another relationship: the spouse inherits the first $100,000 of the estate plus half the balance.
If there are no descendants but both a surviving spouse and parents, the parents are also entitled to a part of the estate. If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some common exceptions include the following:
- Property owned in joint tenancy with right of survivorship
- Life insurance policy and retirement account proceeds
- Elective share of surviving spouse
Form a Last Will in Montana
The basic requirements for a Montana last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
- Witnesses: A Montana will must be signed by at least two individuals within a reasonable time after witnessing the testator sign the will or acknowledge the signature or the will.
- Writing: A Montana will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in Montana
Montana recognizes holographic (handwritten) wills so long as the signature and material portions of the document are in the testator’s handwriting. In Montana, holographic wills do not have be witnessed in order to be valid.
Changing a Montana Last Will and Testament
A Montana will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Montana Last Will and Testament
The revocation of a Montana will can be accomplished by executing a subsequent will or by “burning, tearing, canceling, obliterating, or destroying ” the document or any part of it, done by either the testator or by someone else at his direction in his conscious presence.
When you are ready to make a last will, LegalZoom can help. We can help you start a last will online in three easy steps.