MONTANA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Montana Code, Title 72, Chap. 2: Intestacy, Wills, and Donative Transfers (Mt. Code ยงยง72-2-111, et. seq.).
Trusts: Montana Uniform Trust Code (Mt. Stat. ยงยง72-38-101, et. seq.).
Montana Will Requirements.
To execute a valid will, a Montana testator must be at least 18 years old and โof sound mind.โย A Montana will must be in writing and must be signed by the testator (or signed in the testatorโs name by another person signing at the testatorโs direction while in the testatorโs presence).ย ย
Montana wills must also be signed by at least two witnesses. The witnesses must observe the testator signing the will or hear the testator acknowledge that the testatorโs signature or the will itself is genuine.ย Witnesses must sign within a reasonable time after witnessing the testatorโs signature or acknowledgement.
The only qualification necessary to witness a Montana will is that the individual must be generally competent to act as a witness. An interested witness (i.e., someone who stands to benefit from the will) does not invalidate a Montana will or any provisions within the will.ย
Montana law authorizes a will to incorporate by reference other documents in existence when the will is executed.ย A testatorโs intent to incorporate another document must be clearly manifested in the will, and the will must describe the document sufficiently to allow identification.ย ย
Montana law specifically authorizes incorporation by reference of a written statement or list disposing of the testatorโs tangible personal property other than money. Sometimes called a โmemorandum of personal property,โ the list must be signed by the testator and must identify with reasonable certainty each devised item and intended recipient. The testator can create a personal-property list before or after executing the will and can alter the list after its initial preparation.ย
Though Montana does not require notarization of wills, a Montana will can be made โself-provedโ through execution of notarized affidavits by the testator and the willโs witnesses.ย The affidavitsโwhich may be executed simultaneously with the will or laterโconfirm that the testator signed the will voluntarily, had the necessary legal capacity when signing, and was under no constraint or undue influence.ย When available, a self-proved affidavit serves in place of witness testimony before a probate court.ย The Montana legislature publishes form language for self-proved affidavits at Mt. Code ยง72-2-524.
Under Montana law, a written document that does not technically satisfy all formalities for a written will may be treated as a will and admitted to probate if a proponent of the document can establish through clear and convincing evidence that the decedent intended the document to constitute the decedentโs will.ย ย
No-contest (or โin terroremโ) clausesโwhich penalize a party for contesting a will or initiating estate-related litigationโare unenforceable under Montana law if the contesting person has probable cause for contesting the will.ย
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Amendment, Revision, and Revocation of Montana Wills.
A testator can amend a Montana will by executing a codicil (a separate document that amends an existing will) or another will.ย In either case, the document must satisfy all legal requirements for execution of the original will.ย ย
A testator can revoke a Montana will by executing a new will that revokes the prior will expressly or by inconsistency. Montana law presumes that a later will that does not expressly revoke a prior will revokes the prior will by inconsistency if the later will completely disposes of the testatorโs estate. A later will that does not completely dispose of the testatorโs estate is presumed to have been intended as a supplement to the earlier will. When a later will is treated as a supplement, both wills are fully operative except to the extent of any inconsistent provisions.ย If inconsistent provisions are present, the later-executed will takes precedence as to those provisions.ย
A Montana will may also be revoked by performance of a โrevocatory actโ by the testator (or by another person acting at the testatorโs direction while in the testatorโs presence). A โrevocatory actโ is an action taken with the intent and for the purpose of revoking the will or part of the will. Revocatory acts include burning, tearing, canceling, obliterating, or destroying the document.
A former spouse divorced from a decedent does not qualify as a โsurviving spouseโ for purposes of Montanaโs probate and non-probate transfer rules. If a testator divorces after executing a Montana will or revocable trust, revocable provisions in the will or trust in favor of the former spouse (or a relative of the former spouse) are deemed revoked.ย
Automatic revocation upon divorce does not apply if the will or trust instrument, a property settlement agreement, or a court order expressly provides otherwise. A will or revocable trust provision revoked by divorce is treated as though it was disclaimed by the former spouse and can be revived by remarriage.
If a Montana testator marries after execution of a will, the surviving spouse inherits the same share of the estate he or she would have inherited had the testator died intestateโadjusted for any distributions to children of the testator born before the marriage and who are not children of the surviving spouse.ย An omitted later-wed spouseโs presumed share is inapplicable if the will was made in contemplation of the marriage, the testator intended the will to apply notwithstanding a subsequent marriage, or the testator made other provisions for the surviving spouse outside the will intended in lieu of the will.
If a child is born to or adopted by a Montana testator after execution of a willโand if the testator did not otherwise provide for or appear to intentionally omit the childโthe after-born child may inherit a share of the estate.ย If the testator had no other living children when executing the will, the after-born childโs share is equal to what the after-born child would have inherited had the testator died with no will. If the testator had other children who the testator provided for in the will, the after-born childโs share is calculated based on the devises to other children. An omitted after-born childโs share is inapplicable if the will leaves substantially all of the estate to the childโs other parent.
Holographic and Oral Wills.
A document that does not fully satisfy the requirements for an attested Montana will may be nonetheless valid as a holographic will if it is signed by the testator and all material provisions of the document are in the testatorโs handwriting.ย Evidence outside of the document itself can be used to establish in probate that a testator created a document with the intent to make a will.
Oral (or โnuncupativeโ) wills are not recognized under Montana law.
Montana Trust Requirements.
Montana trusts are primarily governed by the Montana Uniform Trust Code, enacted by the legislature at Mt. Code ยงยง72-38-101, et. seq.ย A Montana trust can be formed for most any purpose; provided, however, the purpose of a Montana trust must be lawful, capable of being achieved, and not in conflict with the stateโs public policy.ย ย
To create a valid trust under Montana law, the settlor must have adequate capacity (measured under the same standard applying to wills) and express an intent to create a trust. A Montana trust is void to the extent its creation was induced through fraud, duress, or undue influence.
A Montana trust must have a trustee with actual duties to perform and a definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes). The sole trustee of a Montana trust cannot also be the trustโs sole beneficiary.ย ย
The trustee of a Montana trust has a duty to administer the trust expeditiously, in good faith, and in accordance with the trustโs terms and purposes and beneficiariesโ interests. Trustees who manage assets are governed by the โprudent investor ruleโ and must invest trust assets prudently considering the trustโs purposes, terms, distribution requirements, and other circumstances.ย The prudent investor rule may be expanded or restricted by express provisions within a trust instrument.
Montana trusts can be created through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a declaration by the owner of property that it is owned as trustee, or by exercising a power of appointment in favor of a trustee. Other than a trust created by operation of law, a Montana trust must be evidenced by a written instrument establishing the trust signed by either the settlor or the trustee (or an agent of either with written authorization to sign).ย ย
Montana law authorizes a revocable trustโs settlor to refer within the trust instrument to a written statement or list disposing of the settlorโs tangible personal property other than money. The list must be signed by the settlor and must identify with reasonable certainty each item and beneficiary. A settlor can create a personal-property list before or after executing the trust and can alter the list after its initial preparation.
A Montana trust is revocable unless the trust is expressly made irrevocable. The settlor of a revocable trust retains the power to revoke or amend the trust after its creation.ย A settlor can revoke or amend a revocable trust using the method defined in the trust instrument orโif the trust instrument provides no methodโby delivering to the trustee a written document manifesting the settlorโs clear intent to revoke or modify the trust.
A Montana court may reform a trust instrument to conform to a settlorโs intentions if the settlorโs intentions can be established and there is evidence that the terms of the trust were affected by a mistake of law or fact.ย A Montana court may also modify a trust to achieve the settlorโs tax objectives, and such modifications can be made to have retroactive effect.
Montana trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purposes become unlawful, contrary to public policy, or impossible to achieve. ย A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย Or, in some circumstances, modification or termination of a trust may be made upon the consent of the settlor and all beneficiaries.ย
The general rule in Montana is that creditors of a trustโs beneficiaries can ask a court to attach a beneficiaryโs interest in distributions from the trust. However, Montana law protects beneficiary interests from attachment if a trust includes a โspendthrift provisionโ restricting beneficiariesโ right to transfer interests in the trust.ย When a spendthrift provision is present, most creditors of beneficiaries cannot attach trust assets until actually distributed to the relevant beneficiary.ย
Creditors of a Montana revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). In the case of irrevocable trusts, settlorsโ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.ย ย
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Estate Taxes: Montana does not impose either estate or inheritance taxes.ย Large Montana estates may still be liable for federal estate taxes.
Informal Probate: Montana has an informal probate process that simplifies administration of eligible estates. An interested person petitions for informal probate by submitting a verified application to the probate clerk. The application identifies the applicantโs interest in the estate and provides information about the decedent and estate circumstances. If the clerk determines that informal probate is appropriate, a personal representative is appointed for the estate. The personal representative issues necessary notices to creditors and beneficiaries, inventories estate assets, and makes appropriate distributions. Informal probate allows for an abbreviated, less burdensome probate process.
Non-Probate Transfers:ย Along with living trusts, Montana law offers multiple other estate-planning options for transferring assets outside of probate. POD (payable-on-death) and TOD (transfer-on-death) designationsโwhich provide for automatic transfer of an asset to a named beneficiary upon the ownerโs deathโare authorized in Montana for several asset types.ย POD designations can be added to financial accounts and CDs. TOD designations are often used with registered securities, brokerage accounts, and similar financial assets.ย ย
Joint ownership provides another means of bypassing probate.ย Assets co-owned as joint tenants with right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Montana allows co-owners to own both real and personal property as joint tenants. Montana does not recognize tenancy by the entiretiesโa joint ownership form only available for married spouses.
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Montana law authorizes TOD designations on real estate deeds. When an owner of Montana real estate records a transfer-on-death deed (sometimes called โTOD deedโ or โbeneficiary deedโ), the named beneficiary takes title to the property upon the ownerโs death with no need for probate. A TOD deed does not affect the property ownerโs rights in the property during life, and the beneficiary does not acquire present rights in the property until death actually occurs.
The Montana Legislature authorized TOD designations for vehicle titles effective October 21, 2021. The new statute, Mt. Code ยง61-3-226, allows a vehicle owner to arrange for non-probate transfer of a vehicle’s title upon the ownerโs death by submitting to the Motor Vehicle Division an application requesting a beneficiary designation on the vehicleโs title.
Spousal Shares: To protect against disinheritance, Montana law affords a surviving spouse the right (waivable by a valid prenuptial agreement) to claim a spousal elective share of 50% of the โmarital propertyโ portion of a decedent spouseโs โaugmented estate.โย The augmented estate includes wealth within the decedentโs net probate estate, plus the value of certain non-probate transfers and property of the surviving spouse. The portion of a decedent spouseโs augmented estate constituting โmarital propertyโ ranges from 3 to 100 percent, depending on how long the couple has been married.ย If an elective share amount is under $75,000, a supplemental elective share is permitted up to $75,000.
A surviving spouseโs share if the deceased spouse is โintestateโ (i.e., left no will) depends on the decedent spouseโs other surviving close relatives. The surviving spouse receives the entire estate if the deceased spouse has no surviving children or parents. The surviving spouse also receives the entire estate if both spouses only have children who are also the children of the other spouse.
If neither of the above scenarios are applicable, the surviving spouseโs share is
- $300,000, plus ยพ of the balance if the decedent leaves a surviving parent and no surviving children;
- $225,000, plus ยฝ of the balance if all of the decedentโs children are also children of the surviving spouse but the surviving spouse has other children;
- $150,000, plus ยฝ of the balance if the decedent has at least one child who is not the surviving spouseโs child.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
