Montana Small Estate Affidavit
In Montana a successor can use a small estate affidavit to collect a decedent's personal property when the probate estate is $100,000 or less and 30 days have passed since death. Attorney review available.
Introduction
Montana law calls this document a collection of personal property by affidavit: a signed, 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. The governing statute is Montana Code Annotated Section 72-3-1101. A person claiming to be the successor of the decedent hands the affidavit straight to whoever owes the decedent money or holds the property, such as a bank, an employer, or a transfer agent, and that party then pays or delivers it. Two limits control whether Montana lets you use it. First, at least 30 days must have passed since the death. Second, the value of the probate estate, wherever located, after liens and encumbrances, must stay at or below $100,000, and that ceiling looks at the whole probate estate rather than the single asset in hand. The sworn statement also confirms that no application or petition to appoint a personal representative is pending or granted anywhere, and that the claiming successor is entitled to the property. Only personal property moves this way; a Montana estate holding real property runs through summary administration when it qualifies. DocDraft assembles your Montana affidavit from your answers, with attorney review available before you sign.
Key Things to Know
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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.
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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).
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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).
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The $100,000 figure measures the value of the probate estate, not just the single asset the successor is trying to collect.
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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.
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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.
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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.
Key decisions before you file
Before you file a Small Estate Affidavit in Montana, a few decisions shape the document: which option to choose and what each one means. The Small Estate Affidavit guide walks through them.
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Montana Requirements for Small Estate Affidavit
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.
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.
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.
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.
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.
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.
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.
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.
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Montana calls it a collection of personal property by affidavit. Under Montana Code Annotated Section 72-3-1101, the person entitled to a decedent's property signs a sworn statement, confirms that at least 30 days have passed since the death and that the probate estate is worth $100,000 or less after liens and encumbrances, and hands it to whoever owes the money or holds the asset. That party then pays or delivers the property without any court appointment, which is usually the quickest and least costly way to wind up a modest Montana estate.
Formal probate opens a case, names a personal representative, and keeps that person under court supervision for months while debts are paid and property is distributed. The Montana affidavit under Mont. Code Ann. Section 72-3-1101 does none of that: the successor signs one sworn statement and collects the personal property straight from the holder, with no appointment and no court file. The trade is a tight eligibility test, since the route opens only when the probate estate is $100,000 or less and no personal representative has been appointed.
The value of the probate estate, wherever located, less liens and encumbrances, must not exceed $100,000 (Mont. Code Ann. Section 72-3-1101). This is a probate-estate test, not a per-asset test, so the successor adds up everything that would pass through probate. If that total is above $100,000, the affidavit is not available and the estate generally goes through probate or Montana summary administration instead.
At least 30 days must have elapsed since the death of the decedent before the affidavit may be used (Mont. Code Ann. Section 72-3-1101). The affidavit states that 30 days have elapsed since the death. If fewer than 30 days have passed, the person who owes or holds the property can decline to release it, so the waiting period is a firm requirement in Montana.
Under Mont. Code Ann. Section 72-3-1101 the affidavit must state that the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000; that 30 days have elapsed since the death; 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. The affidavit is made by or on behalf of the successor under oath.
No. Montana Code Annotated 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, or through a fuller probate, rather than through this affidavit.
Montana Code Annotated Section 72-3-1101 does not itself list a certified copy of the death certificate among the required affidavit statements, which is different from states such as Nebraska that tie the 30-day statement to a certified death certificate. In practice, the bank, employer, or other holder may still ask to see a certified death certificate before releasing the property, so it is sensible to have one ready when presenting a Montana affidavit.
A Montana Section 72-3-1101 affidavit is presented directly to the person who owes the decedent money or holds the decedent's personal property, not filed with a court, and no court order is required. The affidavit is made by or on behalf of the successor under oath, and the successor states entitlement to the property. Because it is sworn, an affidavit should never be signed if the facts are uncertain or the probate estate might exceed $100,000.