Montana Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: an application for informal probate and/or informal appointment of a personal representative, verified and directed to the clerk of the district court with no hearing, or a petition for formal probate or appointment decided by the court after notice and hearing (Mont. Code Ann. §§72-3-201, 72-3-301(1)). Probate of the will and appointment can be requested together. There is no statewide official form, so ask the clerk what the court requires; the court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the claims process runs.

3. 3

   A proceeding for informal or formal probate or appointment may not generally be commenced more than 3 years after the decedent's death, with exceptions; a late appointment where no proceeding occurred within the 3 years limits the representative's powers and bars most creditor claims (Mont. Code Ann. §72-3-122(1)). After the testator's death and on request of an interested person, a person holding the will must deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court; no day count is stated (§72-2-536).

4. 4

   Priority to serve runs from the person with priority under a probated will, then a surviving spouse who is a devisee, a custodial parent of a minor decedent, other devisees, a surviving spouse, certain parents, other heirs, a public administrator, and a creditor only 45 days after death (§72-3-502). A person under 18 or found unsuitable in formal proceedings cannot serve (§72-3-501). Ask the clerk whether any extra requirement applies to a nonresident. The court decides and appointment is not guaranteed.

5. 5

   Notice: for a formal petition, notice of the hearing goes to interested persons by mail or personal delivery; the general notice rule calls for mailing at least 14 days before the hearing (§72-1-301), so ask the clerk whether a different period applies to a probate petition. After any appointment, the personal representative must give information of the appointment to heirs and devisees by ordinary mail not later than 30 days after appointment (§72-3-603).

6. 6

   Creditors: on appointment the personal representative publishes notice once a week for 3 successive weeks in a county newspaper and may mail notice to known creditors. Claims are barred unless presented within 4 months after first publication, or within 30 days of mailing of written notice, whichever is later; the outer bar is 1 year after death (§§72-3-801, 72-3-803).

7. 7

   Bond is not required in informal proceedings except for a special administrator, a will that expressly requires bond, or a written demand by a person or creditor with an interest or claim over $5,000 (§§72-3-513, 72-3-514). In formal proceedings the court may require bond. Not every estate needs probate: see DocDraft's small-estate-affidavit page, and Montana also allows closing by sworn statement within a probate (§§72-3-1103, 72-3-1104).

Montana Requirements for Petition for Probate

• Two Tracks: Application or Petition

  Informal probate or appointment is by verified application to the district court clerk with no hearing; formal probate is by petition to the court after notice and hearing (Mont. Code Ann. §§72-3-201, 72-3-301(1)).

• District Court in the Domicile County

  The filing goes to the district court of the county where the decedent lived; a non-domiciliary decedent requires a venue statement (Mont. Code Ann. §72-3-202).

• Three-Year Outer Limit

  No informal or formal probate or appointment proceeding may generally be commenced more than 3 years after death, with exceptions (Mont. Code Ann. §72-3-122(1)).

• Will Delivery Duty

  After the testator's death and on request of an interested person, a person with custody of the will must deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court (Mont. Code Ann. §72-2-536).

• Order of Priority to Serve

  Priority begins with the person with priority under a probated will, then a surviving spouse who is a devisee, a custodial parent of a minor decedent, other devisees, a surviving spouse, certain parents of an adult decedent, other heirs, a public administrator, and a creditor 45 days after death (Mont. Code Ann. §72-3-502).

• Verified Application Contents

  An informal application is verified by the applicant as accurate and complete to the best of the applicant's knowledge and belief and states venue where the decedent was not domiciled in Montana (Mont. Code Ann. §§72-3-201, 72-3-202).

• Notice to Heirs and Devisees

  Notice of a formal hearing follows the general rule of mailing at least 14 days before the hearing unless a different period applies, and after any appointment the representative informs heirs and devisees by ordinary mail not later than 30 days after appointment (Mont. Code Ann. §§72-1-301, 72-3-603).

• Creditor Notice and Claims Period

  The representative publishes notice once a week for 3 successive weeks; claims are barred unless presented within 4 months after first publication or 30 days after mailed notice, whichever is later, with a 1 year outer bar (Mont. Code Ann. §§72-3-801, 72-3-803).

• Bond by Demand or Court Order

  Bond is not required in informal proceedings unless the will requires it, the appointee is a special administrator, or a person or creditor with over $5,000 demands it; the court may require bond in formal proceedings (Mont. Code Ann. §§72-3-513, 72-3-514).