What Is the Probate Process in Montana?
When someone dies, you must convert their properties and assets into an estate before you distribute them. This legal process is called probate. In Montana, probate courts review and monitor the distribution of estates, and help decide disputes involving:
- Validity of wills and estate plans under Montana law
- Appointment of a personal representative for the estate
- Identification and value of all the estate’s property
- Payment and identification of the estate’s debts
- Tax debt
- Distribution of the estate’s property according to the deceased’s wishes or Montana law
Because this process is complicated and one misstep can cause delays, disputes, and unwanted expenses, it’s in your best interest to consult with a probate lawyer before opening an estate.
How Do I Open an Estate in Montana?
In Montana, the County District Courts handle probate claims. While some estates require formal probate, where you attend court hearings before a judge, many estates are eligible for streamlined probate processes.
When Can You Use a Simplified Probate Process?
Smaller estates worth $50,000 or less can use a simplified probate process that skips most of the hassle of probate court. Your probate lawyer and the estate’s personal representative will file a series of written documents that outline the estate’s assets and affidavits. As long as no one contests the will, the District Court’s clerk, rather than a judge, will process the paperwork and there will be no need to attend a hearing.
If You Don’t Qualify for Simplified Probate
If you don’t qualify for simplified probate, you’ll have to deal with a more complex process involving court hearings and more rigorous documentation. Some of the tasks you will be required to complete include the following:
- Filing documents with the County District Court that formally open an estate
- Naming a personal representative who represents the estate (with a probate lawyer’s help)
- Confirming the will’s validity and addressing any will contests
- Taking inventory of all the estate’s property
- Issuing notices to creditors and identifying the estate’s debt and tax liabilities
- Notifying potential heirs of their entitlement of a property distribution
- Distributing the estate’s assets to all eligible heirs once its debts are paid
Because this process is confusing and sometimes contentious, most Montana families consult with a knowledgeable probate attorney. Located in Helena and Bozeman, Silverman Law Office, PLLC assists families with the entire probate process. We offer practical and compassionate advice and understand that your family wants as quick and painless a probate claim as possible. However, when disputes arise, we aggressively represent our clients’ interests. To learn more about our personalized approach to Montana estate law consultation with a probate lawyer.
Can I Avoid Probate in Montana?
It’s important to understand that your loved one’s estate may not include all of your loved one’s property. Montana probate law does not include the following assets in an estate:
- Property that is held in a trust
- Assets that are jointly owned with rights of survivorship
- Bank and other accounts that are payable on death or transferable on death
- Life insurance, retirement, and other accounts that have a named beneficiary
If most of your loved one’s assets fall into these categories, the estate might be eligible for a simplified, affidavit-based claim or not require probate at all.
While you can’t open a trust after a loved one dies, they are a useful tool that protects your loved ones from the hassle of a probate claim. To learn more about the benefits of living trusts and proactive estate planning in Montana, contact Silverman Law Office, PLLC’s estate planning attorneys.
What Happens If There Isn’t a Valid Will?
Sometimes, a loved one dies before writing a valid will. In these situations, the probate court will distribute the estate’s assets under Montana’s intestate succession or inheritance laws. Like most other states, Montana sets up a system where property is divided based on each heir’s relationship with the deceased. For example, if there is:
- A surviving spouse and no surviving descendants or parents, the spouse receives the entire estate.
- Descendants (children or grandchildren, for example), and no surviving spouse or parents, the children get the entire estate.
- A surviving spouse and children from the marriage, the spouse receives the entire estate.
- A surviving spouse, children from their marriage, and children from the deceased’s prior relationships, the spouse gets the first $150,000 and half of the remaining assets, and the descendants split the remainder.
- Both a surviving spouse and children from a prior relationship, the spouse gets the first $100,000 and half of the remaining assets. The descendants split the remainder.
- Both a surviving spouse and parents, the spouse gets the first $200,000 of the estate and three-fourths of the remaining assets. The parents get the remaining assets.
Because Montana’s inheritance rules are confusing, you should consult with an experienced probate lawyer before applying them to an estate. Without help, it’s easy to make mistakes that lead to litigation, damaged family relationships, and unwanted expenses.
Sometimes, Montana’s rules of intestate succession have unwanted consequences. For example, you might want your spouse to receive all of your assets, rather than share them with your parents. However, the only way to avoid these inheritance laws is by creating a valid, enforceable estate plan. Once you die, it’s typically too late to avoid intestate succession. To speak to an estate planning and probate lawyer, contact our office today.
Schedule Your Consultation With Our Montana Probate Attorneys
A probate lawyer doesn’t just protect your loved one’s legacy and assets. They can also give you peace of mind, as well as time to grieve and transition after a loss. Silverman Law Office, PLLC assists families with their comprehensive probate and estate planning needs throughout Montana. We have offices conveniently located in both Bozeman and Helena. To request a consultation with one of our experienced probate lawyers, simply contact our office today.
How Probate Law Lawyers Handle Contested Wills And Challenged Estates
Dealing with the loss of a loved one is already a difficult experience, and it can become even more complicated when disputes arise over the estate. Wills may be contested for a variety of reasons, from alleged undue influence to questions about the deceased’s mental capacity when drafting the will. Handling these disputes without professional guidance can be overwhelming, which is why Montana probate law lawyers play a crucial role in resolving conflicts related to contested wills and challenged estates. Here’s how they help manage these challenging situations.
1. Evaluating Grounds For A Contest
The first step a probate lawyer takes in a contested will situation is to assess whether the challenge has legal merit. Common reasons for contesting a will include claims of undue influence, lack of testamentary capacity, fraud, and improper execution of the will.
- Undue Influence: If one beneficiary had significant control or influence over the deceased during the will’s creation, it can raise concerns that the will may not reflect the true wishes of the deceased.
- Lack of Capacity: If the deceased had dementia or another condition affecting mental capacity, this could be grounds for challenging the will.
- Fraud or Forgery: In rare cases, someone may forge or tamper with the will, which would invalidate it.
- Improper Execution: Each state has specific laws for legally executing a will; failure to follow these can result in a challenge.
Probate lawyers carefully review the circumstances surrounding the will’s creation and work with witnesses, medical records, and other relevant evidence to determine if there is a legitimate basis for the challenge.
2. Mediating Family Disputes
One of the most common reasons for contested wills is disagreement among family members about the distribution of assets. Probate lawyers often act as mediators in these cases, working to reach an agreeable solution without the need for a lengthy court battle. Through mediation, they guide family members in discussing their concerns openly while remaining focused on the wishes of the deceased and the legal aspects of the will.
Mediation can often prevent conflicts from escalating and save the family time, money, and emotional stress. Probate lawyers with mediation experience are particularly effective in helping clients find resolutions that respect both family dynamics and legal obligations.
3. Gathering And Presenting Evidence
If the will challenge goes to court, a probate lawyer takes on the responsibility of gathering and presenting evidence. This could include:
- Testimony from witnesses: Individuals who were present when the will was signed may be asked to confirm that the deceased appeared to be of sound mind and free from influence.
- Medical Records: These can provide insight into the deceased’s mental and physical health at the time the will was created.
- Financial Records: In some cases, financial records can indicate unusual activity that may support or refute claims of undue influence or fraud.
Conclusion
Contesting a will or challenging an estate can be a legally and emotionally complex process, but probate lawyers bring the experience, objectivity, and skill necessary to handle these disputes effectively. By thoroughly evaluating the grounds for a contest, mediating family disputes, gathering evidence, and representing clients in court, they provide essential support during one of life’s most challenging times. For families facing will contests, a Montana probate law lawyer from Silverman Law Office, PLLC offers the guidance and legal expertise needed to pursue a fair resolution.
