One of the most common misconceptions we hear from clients is this: “I have a will, so my family won’t have to deal with probate, right?” Our Montana probate litigation lawyer will help clarify things:
Unfortunately, that’s not how it works. At least not here in Montana.
A will is a valuable legal document. It gives you the power to decide who receives your property after your passing, and it allows you to name a personal representative (executor) to carry out those wishes. But what a will does not do is keep your estate out of probate.
What Is Probate?
Probate is the court-supervised process of transferring ownership of your assets after you die. It’s also the process where a judge formally recognizes your will, appoints your personal representative, and authorizes them to settle your affairs. This includes gathering assets, paying debts, and distributing property.
In Montana, probate is required if:
- You own real estate of any value that doesn’t automatically transfer (for example, property not in a trust or covered by a Transfer on Death Deed), or
- You have assets totaling more than $100,000 that aren’t already set to transfer directly to a beneficiary.
So if your will leaves your house and your savings account to your children, and neither are set up to transfer automatically at your death, those assets must go through probate, even if your will is perfectly written and legally valid.
How Can You Avoid Probate?
If keeping your estate out of probate is important to you, there are several tools available that can help:
1. Transfer on Death Deed (TODD)
In Montana, you can record a TODD for your real estate. This allows the property to pass directly to a named beneficiary at your death without going through probate. You still retain full control of the property during your lifetime, and you can revoke or change the deed at any time.
2. Beneficiary Designations
For accounts like life insurance policies, retirement accounts, and bank accounts, you can name beneficiaries. When you pass away, these assets go straight to your named beneficiaries and bypass probate. Just be sure to keep those designations up to date, as outdated or missing designations are a common reason assets end up in probate unnecessarily.
3. Revocable Living Trust
A trust allows you to transfer ownership of your assets to a legal entity you control during your lifetime. At your death, the assets in the trust are distributed according to your instructions, without court involvement. Trusts can also offer privacy, flexibility, and better management options for complex or high-value estates.
Why It Matters
Avoiding probate doesn’t mean avoiding all legal or financial steps, but it can mean less paperwork, fewer delays, and reduced costs for your loved ones. It can also help keep your personal affairs private, as probate records are public.
At Silverman Law Office, PLLC, we work with individuals and families across Montana to design estate plans that match their goals, minimize unnecessary stress, and make sure loved ones are cared for. Sometimes a will is enough. Other times, additional tools like TODDs or trusts make more sense. It all depends on your assets, your wishes, and your family dynamics.
If you’re unsure whether your current estate plan is built to avoid probate, or if you don’t have a plan in place yet, we’re here to help. Call us at 406-582-8822 or visit https://mttaxlaw.com/contact/ to connect with us today.