Montana Acknowledged Statement That a Nonprobate Interest Holder Has Died

Introduction

Key Things to Know

1. 1

   MCA 72-16-503 uses the word shall: a person with an interest in real property that was owned by a decedent shall record the document with the clerk and recorder of each county where the property or any part of it lies. That makes Montana a mandatory state. It does not transfer anything, because MCA 72-16-501 already provides that the decedent's joint tenancy interest terminates upon death. The filing puts that termination on the public record.

2. 2

   Montana gives the instrument no short name and never calls it an affidavit. MCA 7-4-2613(1)(c) describes it as an acknowledged statement indicating that the holder of a nonprobate interest in real property is deceased. Searching for a Montana affidavit of death by that name will not find the statute, so work from the section numbers.

3. 3

   The content specification is two items long. A statement that the holder of the nonprobate interest has died and that the holder's interest in the property is terminated, and a legal description of the property. Both halves of the first item matter: Montana wants the death and the termination stated, not just the death.

4. 4

   The certified death certificate does not attach to the recorded statement. It attaches to Form RTC, the Realty Transfer Certificate, under the part of that form dealing with a transfer by operation of law. MCA 7-4-2613(1)(c) never mentions a death certificate, and the phrase does not appear anywhere in the section. Order certified copies, then understand that they go with the revenue form.

5. 5

   Each county, separately. The statute says the clerk and recorder of each county in which the real property or any part of the property is located, so a parcel crossing a county line is recorded in both, and property in two counties means two filings. Montana's recording officer is titled clerk and recorder in MCA 72-16-503 and county clerk in MCA 7-4-2613(1); they are the same office.

6. 6

   Joint tenancy and a life estate are one category here. MCA 7-4-2613(1)(c) defines a nonprobate interest as a joint tenancy interest or a life estate interest, and MCA 72-16-502 defines a decedent to cover the owner of a life estate that terminated at death as well as a joint tenant with right of survivorship and not a tenant in common. A surviving joint tenant and a remainder owner file the same kind of document.

7. 7

   The part has a threshold limit worth checking before anything else. MCA 72-16-502 defines a decedent, for this part, as one who dies leaving no property that requires the appointment of a personal representative. Where a Montana estate does require a personal representative, this route is not the right one and the question belongs with a Montana attorney.

Montana Requirements for Affidavit of Death

• A Statement That the Holder of the Nonprobate Interest Has Died

  The first half of the first of two contents MCA 7-4-2613(1)(c) specifies. Name the person who died, using the name as it appears in the recorded instrument that created the interest, and give the date of death. Where the death certificate carries a different form of the name, give both and state they are the same person, because the county index is searched by name. Say which kind of interest it was, a joint tenancy interest or a life estate interest, since those are the only two the statute recognizes as nonprobate interests.

• A Statement That the Interest in the Property Is Terminated

  The second half of that first content item, and the part most often left out because it reads as a conclusion rather than a fact. MCA 7-4-2613(1)(c) asks for a statement that the holder has died AND that the holder's interest in the property is terminated. Say both. MCA 72-16-501 is the authority that makes it true: the interest of the decedent in property held in joint tenancy terminates upon death. A document that recites only the death does not meet the specification.

• A Legal Description of the Property

  The second of the two statutory contents, and the whole of what MCA 7-4-2613(1)(c) asks about the land. Copy the legal description character for character from the recorded instrument that created the joint tenancy or the life estate rather than describing the property from memory, and add the street address so the clerk and the assessor can match it. Montana asks for nothing else here: no parcel number is specified by the subsection, and no street address either, though both help in practice.

• Recording With the Clerk and Recorder of Every County Involved

  MCA 72-16-503 directs recording with the clerk and recorder of each county in which the real property or any part of the property is located. Two consequences follow. A parcel straddling a county line is recorded in both counties, not just the one where the house stands. And where the decedent held separate parcels in different counties, each county gets its own filing describing the property in that county. Montana calls the office clerk and recorder in MCA 72-16-503 and county clerk in MCA 7-4-2613(1); it is the same office, and it is not a court.

• An Acknowledgment

  MCA 7-4-2613(1)(c) calls for an acknowledged statement, so sign before an officer authorized to take acknowledgments and use the wording your clerk and recorder accepts. Two honest limits on this. Montana's word is acknowledged rather than notarized, and no Montana source consulted contains an express sentence requiring notarization of this instrument, nor were Montana's acknowledgment statutes read, so what an acknowledgment formally requires is not described here. No witnesses are required: the word witness appears nowhere in MCA 7-4-2613 or MCA 72-16-503.

• The Certified Death Certificate, Which Goes With Form RTC Instead

  Order certified copies, then put them in the right envelope. MCA 7-4-2613(1)(c) specifies two contents for the recorded statement and never mentions a death certificate, and the phrase does not appear anywhere in that section. The certified death certificate is an attachment to Form RTC, the Realty Transfer Certificate issued by the Montana Department of Revenue, under the part of that form dealing with a transfer by operation of law, where termination of joint tenancy or life estate by death appears as its own line item separately from a transfer on death deed. Note that the Form RTC PDF could not be re-read when this page was prepared, so nothing else about the form is asserted here. Confirm the current version and its attachment list with the Department of Revenue or your clerk and recorder.

• A Check That the Estate Needs No Personal Representative

  This is a gate rather than a drafting item, and it sits at the front of the statute. MCA 72-16-502 defines a decedent, for the purposes of this part, as one who dies leaving no property that requires the appointment of a personal representative, and who was either the owner of a life estate that terminated at death or the owner of property with another or others as a joint tenant with right of survivorship and not as a tenant in common. If the estate does require a personal representative appointed, the definition is not satisfied and this part does not reach the decedent. That is a question for a Montana attorney rather than for the recording counter.

• The Right Statutory Route, Because Montana Splits the Cases Across Titles

  Check which Montana part you are in before drafting. Joint tenancy and life estate sit in Title 72 chapter 16 Part 5, captioned Joint Tenancies and Life Estates Determination of Tax and Termination, where MCA 72-16-503 imposes the mandatory recording duty. Montana's Uniform Real Property Transfer on Death Act is a different part, MCA 72-6-401 through 72-6-418, and it contains no post-death affidavit or notice of death section among its eighteen sections. Two citations worth getting right because they circulate wrongly: the transfer on death act is not at MCA 72-6-121 or 72-6-122, and Part 10 of Title 72 chapter 16 is the Generation-Skipping Transfer Tax rather than anything to do with this filing.