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• Q: What is a will?
  • A: A will is a legal document by which a person makes a distribution of property to take effect after death. It outlines the person’s assets, identifies the heirs to receive his property, and appoints an executor who will distribute the property according to the terms of the will. A will may be modified or revoked during the lifetime of its maker.
• Q: Why do I need a will?
  • A: You need a will so you can determine who receives your possessions and other assets when you die. If you die without a will, your property will be distributed according to the intestate laws of the state where you reside, which may result in your property being distributed in a way that you did not intend.
• Q: Can I make a handwritten will?
  • A: The short answer to this question is yes. Each state has different requirements pertaining to what is considered to be a valid will. So long as the requirements are met, a will is considered legal even if it is handwritten. However, the safest practice is to have your attorney prepare a printed legal will that is tailored to your unique situation and is executed according to your state’s requirements.
• Q: What is the difference between a will and a living will?
  • A: A will is a document that allows individuals to specify how they would like their estates to be handled after their death. A living will is a document that allows individuals to state their wishes pertaining to medical treatment if they are no longer able to make those decisions themselves.
• Q: Do I need to have a certain amount in assets to create a will?
  • A: No. You can make a will as long as you are of legal age and mentally competent. The size of your estate is only one factor—and usually not an important one—in determining whether you should make a will.
• Q: What is an executor, and what do they do?
  • A: An executor—referred to as a personal representative in Montana—is the person you choose in your will to handle the administration of your estate. This person, who can be a friend, family member, corporate entity, or bank, is responsible for distributing your assets and generally carrying out the plan you specified in your will.
• Q: What happens to my will after I die?
  • A: After you die, your will must be submitted for probate. Usually, the personal representative determines if your will must be probated, and if so, submits your will to the court. Once your will is filed with the probate court, your will becomes a public record.
• Q: What is probate?
  • A: Probate is a process through the court to transfer title to your property to the people you name in your will to receive the property. Under Montana law, the probate of an estate takes not less than six months and can be expensive.
• Q: What is a trust?
  • A: A trust is a fiduciary arrangement that allows the transfer of property to a third party or trustee to be held and used for the benefit of a beneficiary. There are many benefits to having a trust, even if you are not ultra-rich.
• Q: Why should I have a trust?   
  • A: You should have a trust if you want assets held for a length of time, such as for minor children, a disabled individual, or someone who is financially irresponsible. If you have a blended family and want to ensure children not of your spouse will receive a share of the estate, or if you have an estate large enough to incur estate taxes, a trust circumvents probate and makes administration of your estate seamless after your death.
• Q: What is a trustee?   
  • A trustee is an individual person or a company given control or powers of administration of property in trust with a legal obligation for the purposes specified.
• Q: What is a discretionary trust?
  • A: A discretionary trust is a trust in which the trustee has the authority to determine whether a beneficiary receives assets from the trust, when the beneficiary will receive the assets, and how much of the assets the beneficiary will receive.
• Q: What is a living trust?
  • A: A living trust is created by you during your lifetime. Most living trusts are grantor revocable living trusts. You, the grantor, create the trust during your lifetime and have the power to revoke it at any time. The trust is effectively you—and it is reported to the IRS under your social security number. A revocable living trust will usually not protect you from federal estate taxes.
• Q: What is the difference between a revocable trust and an irrevocable trust?
  • A: A revocable trust is a trust which you have the power to amend or revoke during your lifetime. An irrevocable trust is one which may not be amended or revoked, not even by you as the grantor. Irrevocable trusts can be useful for asset protection purposes or for decreasing the value of your estate so your it does not incur estate taxes on your death.
• Q: What is a special needs trust?
  • A: A special needs trust is a type of trust used to provide supplementary support for a disabled beneficiary who is receiving government disability benefits, while not disqualifying the beneficiary from the government benefits.
• Q: What is a power of attorney?
  • A: A power of attorney (POA) is a written document, signed by you while you have capacity, which authorizes another adult to act in your stead to make financial or medical decisions for you when you are unable to make those decisions.
• Q: What is a durable power of attorney?
  • A: Powers of attorney may become effective immediately or upon you becoming incapacitated. A durable power of attorney is one which becomes effective immediately but remains effective even if you become incapacitated.
• Q: What is a guardian?
  • A: A guardian is a person appointed by a court to make financial and personal decisions for an adult incapacitated person.
• Q: What is the difference between a guardian and a conservator?
  • A: A guardian is a person appointed by the court to manage your personal affairs, such as ensuring that you have food, shelter, clothing, and caregivers if necessary. If your estate is less than $5,000, then the guardian may also manage your finances.

A conservator is a person appointed by the court to manage your financial affairs if your estate is over $5,000. This individual can pay your mortgage, rent, and bills—and even sell your house if this is necessary. The same person may be appointed as both guardian and conservator.

Need Further Help Understanding Estate Law?

Call the attorneys at the Silverman Law Office at our Helena office at 406-449-4829, our Bozeman office at 406-58-8822, or tell us more about your questions here and we will respond to you.