{"id":121,"date":"2017-06-15T11:55:47","date_gmt":"2017-06-15T11:55:47","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=121"},"modified":"2024-04-25T23:21:09","modified_gmt":"2024-04-26T03:21:09","slug":"devolution-of-real-property-after-death-in-montana","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/devolution-of-real-property-after-death-in-montana\/","title":{"rendered":"Devolution of Real Property After Death in Montana"},"content":{"rendered":"\n

When a Montanan dies, probate is required for any property he or she\nheld individually or as a tenant in common; property held in a survivorship\ninterest devolves to survivors by process of law; property held in trust or\nwith a beneficiary designation likewise avoids probate. However, documentation\n(such as an affidavit of surviving spouse) must still be recorded to\neffectively pass title.<\/p>\n\n\n\n\n\n\n\n

Probate refers to the legal process by which a decedent\u2019s (deceased\nperson) will is proven in Court and his or her estate settled and distributed\nto rightful heirs. The Montana Uniform Probate Code (UPC), codified under Title\n72 of the Montana Code, governs probate in that state. The duration of probate is\ndependent upon the circumstances of the decedent\u2019s estate planning and the\noverall complexity of the estate.<\/p>\n\n\n\n

The District Court in which the decedent resided at the time of death\nhas jurisdiction in the decedent\u2019s estate. The probate process is initiated by\ndelivering the will, or, if the decedent died intestate, petitioning the court\nfor granting of letters of administration. Testacy refers to the status of a\nwill at the decedent\u2019s time of death; when the decedent dies without a will,\nhis estate is said to be intestate. When the decedent dies with a valid will,\nhis estate is said to be testate.<\/p>\n\n\n\n

The Court appoints a personal representative (PR), who, as the estate\u2019s\nfiduciary, is personally in charge of settling and distributing the estate\naccording to the provisions of the decedent\u2019s will or Montana\u2019s laws of\nintestate succession. A PR named in the decedent\u2019s will is sometimes referred\nto as an executor. When the decedent dies without a will, or no PR is named,\nthe court selects the PR, who may be called an administrator, based on the\npriority established at \u00a7 72-3-502, MCA. As evidence of the PR\u2019s authority to\nact on the estate\u2019s behalf, the Court issues letters; the type of letters\nissued depends on the decedent\u2019s testacy status and the type of probate granted.\n<\/p>\n\n\n\n

Montana offers both informal and formal probate options. Formal probate\nis preferred for intestate estates or when the validity of a will is\nquestioned, or if there is disagreement among survivors concerning the\nappointment of a personal representative. Formal probate proceedings take place\nbefore a District Court judge and are closed with a formal hearing [1]. <\/p>\n\n\n\n

After valid debts, claims on the estate by creditors, and\nadministrative expenses have been paid, the PR may distribute the decedent\u2019s\nproperty to devisees under a will and\/or rightful heirs. To convey real\nproperty, the PR must execute a deed. <\/p>\n\n\n\n

A deed of distribution by personal representative is conclusive\nevidence of the distributee\u2019s succession to the decedent\u2019s interest (\u00a7\n72-3-905); alternately, the PR may petition the court for partition of property\nto be distributed among multiple distributees. The Court may direct the PR to\nsell property which cannot be conveniently partitioned (\u00a7 72-3-914). Deeds of\ndistribution are made by the PR to distributees as grantees, and recorded in\nthe office of the clerk\/recorder of the county wherein the property is located\nto maintain a consistent chain in title. They contain basic information about\nthe decedent, the estate, the personal representative, and the distributee(s).\nThey do not require sales information (exempt under \u00a7 15-7-307(9)), but still\nrequire a Montana Realty Transfer Certificate. <\/p>\n\n\n\n

If it becomes necessary to sell real property (to pay the estate\u2019s\ndebts or to fulfill the provisions of the decedent\u2019s will, for example), the PR\nexecutes a personal representative\u2019s deed. The PR deed is a fiduciary\ninstrument generally offering a limited warranty of title (as they are often\nmade to parties outside of the estate). The conveyance requires sales\ninformation to be disclosed on the Realty Transfer Certificate. <\/p>\n\n\n\n

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\u2019s office of the appropriate county. Approval is not required to complete any transaction authorized for a PR by the UPC under \u00a7 72-3-613, except under formal probate proceedings. This includes sales of real property.<\/p>\n\n\n\n

Related Montana Probate Forms:<\/p>\n\n\n\n