Montana Small Estate Affidavit

Introduction

Key Things to Know

1. 1

   A Montana collection of personal property by affidavit is a sworn statement that lets the person entitled to a decedent's property claim money owed to the decedent, a last paycheck, or brokerage holdings without a court-supervised probate.

2. 2

   The affidavit is available only when the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000 (Mont. Code Ann. Section 72-3-1101).

3. 3

   It may not be used until at least 30 days have elapsed since the death of the decedent (Mont. Code Ann. Section 72-3-1101).

4. 4

   The $100,000 figure measures the value of the probate estate, not just the single asset the successor is trying to collect.

5. 5

   The affidavit must state that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction, and that the claiming successor is entitled to payment or delivery of the property.

6. 6

   The section is titled Collection of personal property by affidavit and reaches personal property only; a Montana estate that includes real property is handled through summary administration when it qualifies.

7. 7

   Montana Section 72-3-1101 does not itself require a certified copy of the death certificate to be attached, though the bank or other holder may still ask for one, and the affidavit is made by or on behalf of the successor under oath.

Montana Requirements for Small Estate Affidavit

• 30-Day Waiting Period

  In Montana a small estate affidavit may not be used until at least 30 days have elapsed since the death of the decedent (Mont. Code Ann. Section 72-3-1101). The affidavit states that 30 days have elapsed since the death.

• $100,000 Probate-Estate Limit

  The affidavit is available only when the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000 (Mont. Code Ann. Section 72-3-1101). This is a probate-estate test, not a per-asset test.

• Personal Property Only

  Section 72-3-1101 is titled Collection of personal property by affidavit and reaches personal property only, such as debts owed to the decedent, tangible personal property, stock, and other instruments. A Montana estate that includes real property is handled through summary administration when it qualifies.

• No Personal Representative Pending

  The affidavit must state that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction (Mont. Code Ann. Section 72-3-1101). If probate has already been opened, the affidavit is not available.

• Successor Entitlement Statement

  The affidavit must state that the claiming successor is entitled to payment or delivery of the property (Mont. Code Ann. Section 72-3-1101). It is made by or on behalf of a person claiming to be the successor of the decedent.

• Death Certificate Not Required by Statute

  Section 72-3-1101 does not itself list a certified copy of the death certificate among the required affidavit statements, unlike Nebraska which ties the 30-day statement to a certified death certificate. In practice the bank or other holder may still ask to see one, so keep a certified death certificate ready.

• Presented to the Holder, Not Filed

  A Section 72-3-1101 affidavit is presented directly to the person indebted to the decedent or holding the personal property, not filed with a court, and no court order is required. The holder pays or delivers the property upon presentation of the affidavit.

• Made Under Oath

  The affidavit is made by or on behalf of the successor under oath (Mont. Code Ann. Section 72-3-1101). A person who pays or delivers property on it relies on those sworn statements, so do not sign if the facts are uncertain or the probate estate might exceed $100,000.