Montana Living Trust
The Montana rules that shape the document: the Section 72-38-407 bar on oral trusts, the Section 70-32-103 homestead carve-out, and the Section 72-2-231(6) elective share reach into revocable trust assets.
Find out where you stand in Montana
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Introduction
A living trust lets you transfer assets to a trustee during your lifetime so they pass to your beneficiaries without going through probate, but only for what you actually fund into it; anything still titled in your own name goes through Montana probate regardless of what the trust says. Montana departs sharply from most Uniform Trust Code states on one point: MCA Section 72-38-407, captioned 'Statute of frauds,' requires every trust to be evidenced by a written instrument signed by the settlor or the trustee, or created by operation of law. Montana did not adopt the uniform act's oral-trust-by-clear-and-convincing-evidence option that most UTC states, including neighboring Arizona, kept, so an informally created or purely oral trust that would hold up elsewhere is void here. Montana also has a dedicated statute, Section 70-32-103, that preserves your homestead exemption when your home is deeded into a revocable trust, though the homestead itself is not automatic and must be perfected by recording a declaration.
Key Things to Know
- 1
Montana bars oral trusts. MCA Section 72-38-407 requires a trust to be evidenced by a written instrument signed by the settlor or trustee, or created by operation of law. Unlike most UTC states, including Arizona, Montana has no clear-and-convincing-evidence exception for an unwritten trust; an oral trust here is void, not just harder to prove.
- 2
A written Montana trust is not easier to unwind than a will. Absent a different method in the trust terms, Section 72-38-602(3)(b) requires any amendment or revocation to be a writing delivered to the trustee that manifests clear and convincing evidence of the settlor's intent. An oral change of mind carries no legal effect.
- 3
Your homestead exemption can survive funding into a revocable trust, but you must still perfect it. Section 70-32-103(2) lets a homestead be selected from property contributed to a revocable trust, disregarding the trust, and treats the settlor as an ordinary claimant. Montana's homestead is not automatic, though; Section 70-32-105 requires recording a declaration of homestead. The exemption is a statutory base of $350,000 set in 2021, increasing 4 percent every calendar year, so confirm the current figure before relying on it.
- 4
Montana's elective share reaches your revocable trust. Section 72-2-231(6) defines a 'presently exercisable general power of appointment' to expressly include a retained power to revoke a trust, and Section 72-2-235(1)(a) pulls that power into the surviving spouse's augmented estate. The elective share is 50 percent of the marital-property portion of the augmented estate, phased in by length of marriage, with a $75,000 supplemental minimum under Section 72-2-232 if the calculated amount falls short.
- 5
A revocable living trust gives you no protection from creditors while you are alive. MCA Section 72-38-505(1)(a) subjects a revocable trust's property to the settlor's creditors during life, and Montana has no self-settled asset-protection-trust statute; it has not joined the small group of states, such as Nevada, South Dakota, and Delaware, that allow a settlor to shield self-settled trust assets.
- 6
Montana has no state estate tax or inheritance tax you need to plan around. The inheritance tax was repealed outright, and the separate estate tax statute, MCA Section 72-16-905, is a pick-up tax pegged to a federal credit Congress eliminated after 2004, so it computes to $0 for any death today.
- 7
Funding Montana real property into your trust has its own paperwork, not a tax. There is no real estate transfer tax, but MCA Section 15-7-305 requires a Realty Transfer Certificate before the county clerk and recorder can accept the deed, and MCA Section 70-21-203 requires the deed's execution to be acknowledged before a notary or proved by a subscribing witness whose proof is itself notarized.
Key decisions before you file
Before you file a Living Trust in Montana, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
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Montana Requirements for Living Trust
Montana Statute of Frauds Bars Oral Trusts
MCA Section 72-38-407 requires a trust to be evidenced by a written instrument signed by the settlor or trustee, or created by operation of law. Montana does not enact the uniform act's oral-trust-by-clear-and-convincing-evidence exception kept by most UTC states, including Arizona; an unwritten Montana trust is void.
Montana Amendment and Revocation Require a Writing
Absent a different method stated in the trust, MCA Section 72-38-602(3)(b) requires any amendment or revocation to be a writing delivered to the trustee manifesting clear and convincing evidence of the settlor's intent. An oral change of mind carries no legal effect.
Montana Homestead Preserved in a Revocable Trust, But Not Automatic
MCA Section 70-32-103(2) lets a homestead be selected from property contributed to a revocable trust, disregarding the trust, if it would otherwise qualify. The homestead is not automatic; Section 70-32-105 requires recording a declaration. The exemption is a statutory base of $350,000 set in 2021, increasing 4 percent yearly; confirm the current figure before relying on it.
Montana Realty Transfer Certificate Required to Fund Real Property
MCA Section 15-7-305 requires a Realty Transfer Certificate to be delivered to the county clerk and recorder before a deed conveying Montana real property, including into a trust, can be accepted for recording. MCA Section 70-21-203 requires the deed's execution to be acknowledged before a notary or proved by a subscribing witness whose proof is itself notarized. Montana has no real estate transfer tax.
Montana Elective Share Reaches Revocable Trust Assets
MCA Section 72-2-231(6) defines a presently exercisable general power of appointment to include a retained power to revoke a trust, and Section 72-2-235(1)(a) pulls that power into the surviving spouse's augmented estate. The elective share is 50 percent of the marital-property portion of the augmented estate, phased in by length of marriage, with a $75,000 supplemental minimum under Section 72-2-232.
Montana Certificate of Trust
MCA Section 72-38-1013 lets the trustee furnish a certification of trust in place of the full instrument to a bank, title company, or other third party, without disclosing dispositive terms. A recipient who demands the full instrument and is found not to have acted in good faith is liable for resulting damages under Section 72-38-1013(8).