Devolution of Real Property After Death in Montana

When a Montanan dies, probate is required for any property he or she held individually or as a tenant in common; property held in a survivorship interest devolves to survivors by process of law; property held in trust or with a beneficiary designation likewise avoids probate. However, documentation (such as an affidavit of surviving spouse) must still be recorded to effectively pass title.

Probate refers to the legal process by which a decedent’s (deceased person) will is proven in Court and his or her estate settled and distributed to rightful heirs. The Montana Uniform Probate Code (UPC), codified under Title 72 of the Montana Code, governs probate in that state. The duration of probate is dependent upon the circumstances of the decedent’s estate planning and the overall complexity of the estate.

The District Court in which the decedent resided at the time of death has jurisdiction in the decedent’s estate. The probate process is initiated by delivering the will, or, if the decedent died intestate, petitioning the court for granting of letters of administration. Testacy refers to the status of a will at the decedent’s time of death; when the decedent dies without a will, his estate is said to be intestate. When the decedent dies with a valid will, his estate is said to be testate.

The Court appoints a personal representative (PR), who, as the estate’s fiduciary, is personally in charge of settling and distributing the estate according to the provisions of the decedent’s will or Montana’s laws of intestate succession. A PR named in the decedent’s will is sometimes referred to as an executor. When the decedent dies without a will, or no PR is named, the court selects the PR, who may be called an administrator, based on the priority established at § 72-3-502, MCA. As evidence of the PR’s authority to act on the estate’s behalf, the Court issues letters; the type of letters issued depends on the decedent’s testacy status and the type of probate granted.

Montana offers both informal and formal probate options. Formal probate is preferred for intestate estates or when the validity of a will is questioned, or if there is disagreement among survivors concerning the appointment of a personal representative. Formal probate proceedings take place before a District Court judge and are closed with a formal hearing [1].

After valid debts, claims on the estate by creditors, and administrative expenses have been paid, the PR may distribute the decedent’s property to devisees under a will and/or rightful heirs. To convey real property, the PR must execute a deed.

A deed of distribution by personal representative is conclusive evidence of the distributee’s succession to the decedent’s interest (§ 72-3-905); alternately, the PR may petition the court for partition of property to be distributed among multiple distributees. The Court may direct the PR to sell property which cannot be conveniently partitioned (§ 72-3-914). Deeds of distribution are made by the PR to distributees as grantees, and recorded in the office of the clerk/recorder of the county wherein the property is located to maintain a consistent chain in title. They contain basic information about the decedent, the estate, the personal representative, and the distributee(s). They do not require sales information (exempt under § 15-7-307(9)), but still require a Montana Realty Transfer Certificate.

If it becomes necessary to sell real property (to pay the estate’s debts or to fulfill the provisions of the decedent’s will, for example), the PR executes a personal representative’s deed. The PR deed is a fiduciary instrument generally offering a limited warranty of title (as they are often made to parties outside of the estate). The conveyance requires sales information to be disclosed on the Realty Transfer Certificate.

PR deeds and deeds of distribution must be signed by the PR in the presence of a notarial official and recorded in the clerk/recorder’s office of the appropriate county. Approval is not required to complete any transaction authorized for a PR by the UPC under § 72-3-613, except under formal probate proceedings. This includes sales of real property.

Related Montana Probate Forms:

As always, consult an attorney licensed in the State of Montana for completion of any legal forms, and with questions regarding probate procedures in Montana.