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When Is Probate Not Necessary?

When Is Probate Not Necessary?

If you might think that most Montana estates require an extensive probate process, you’ll be happy to learn that many families can streamline their probate matters — or even eliminate them completely. So when is probate not necessary? Contact Silverman Law Office today to learn more about how you might avoid probate.

Why Would I Want to Avoid Probate?

Probate proceedings ensure that your loved one’s estate is distributed according to their valid will or Montana’s inheritance laws. While it is an important safeguard, probating an estate is sometimes complicated, time intensive, and expensive. While an experienced Belgrade, MT probate lawyer will do their best to simplify your claim and keep costs low, they can’t control every single factor in a probate case. For this reason, many families would rather not open an estate in one of Montana’s County District Courts.

Step 1: Look for Assets That Do Not Require Probate

Under Montana’s probate laws, you can distribute certain types of property and assets without a probate court’s approval. They include:

  • Accounts with a named beneficiary, such as life insurance policies and retirement funds
  • Assets and property that is held in a living trust
  • Assets and property that are owned as joint tenants with rights of survivorship
  • Bank accounts that are payable on death
  • Investments that are transferable on death
  • Vehicles and other property that is transferable on death

If all of your loved one’s assets fall into these categories, you will not have to probate their estate.

If you have questions about your loved one’s assets, contact a knowledgeable estate lawyer for help. At Silverman Law Office, we help our clients identify and inventory an estate’s property and we always look for situations when probate is not necessary.

Step 2: Consider Filing an Affidavit for Collection of Personal Property

You can close many small estates in Montana by filing an affidavit. To qualify, you must show that:

  • The estate has less than $50,000 in assets after it pays its debts
  • Your deceased loved one passed away more than 30 days ago
  • No one has been appointed the estate’s personal representative

You will need to file a series of documents with the Clerk, including an Affidavit for Collection of Personal Property.

Rather than open an estate that is reviewed by a District Court judge, the claim is managed by the District Court Clerk. In a small estate claim, you won’t have to attend probate hearings or jump through all the procedural hoops of a traditional probate claim.

It’s important to note that this affidavit only lets you claim personal property, not real estate, without a probate hearing. If your loved one’s estate includes real estate, speak to an estate planning attorney. Sometimes, probate is not necessary for real estate because it’s held in a joint tenancy with rights of survivorship. We can help you understand your legal options after a loved one’s death.

Step 3: Determine Whether You’re Eligible for Simplified Probate

Montana offers a simplified probate process for certain estates. While this process does require the probate court’s involvement, it is easier and less expensive than a full probate claim. You will have to file a series of documents, but a simplified probate claim, sometimes called “summary administration,” lets you quickly distribute a small estate’s assets without notifying creditors and other formalities.

The eligibility criteria for simplified probate vary in Montana, depending on the deceased’s family structure. To find out if you qualify for simplified probate, contact Silverman Law Office today.

Your Loved Ones Will Appreciate Your Advanced Estate Planning

When is probate not necessary? The answer is simple: when you plan in advance. As you’re digging through your deceased loved one’s titles, bank accounts, and other assets, think about your personal estate plan. If you’d rather not subject your loved ones to the probate process, an estate planning attorney can help.

At Silverman Law Office, we can help you build an estate plan that minimizes or avoids the probate process completely. Depending on your unique circumstances, your estate plan might involve:

  • Living or inter vivos trusts
  • Converting property into joint tenancies with rights of survivorship
  • Designating accounts and assets as transferable on death
  • Making charitable and personal gifts to loved ones during your lifetime
  • Purchasing life insurance with a designated beneficiary
  • Reviewing and updating the beneficiaries on your current life insurance and retirement accounts

While a will won’t minimize (or increase) your need for probate, we also help our clients create last wills and testaments that protect their legacy and loved ones.

To Learn More About When Probate Is Not Necessary

For more information about probate, and when it is and isn’t necessary, schedule an appointment with one of Silverman Law Office’s probate lawyers. We’d love to get to know you and your situation and help you understand your legal options. To request a no-risk consultation, contact our offices in either Helena or Bozeman today.


Fill out the form below to get in touch with our legal team or call Bozeman office at (406) 582-8822 or our Helena office at (406) 449-4829 to talk to someone right away.

Silverman Law Office - Bozeman

504 W. Main St.

Bozeman, MT 59715

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Silverman Law Office - Helena

2620 Colonial Drive

Helena, MT 59601

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