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Updated Will Guide: Essential Information for All Family Structures

Comprehensive guide to updating your will for blended families, same-sex couples, parents, and individuals with significant assets. Learn why an updated will is crucial for protecting your loved ones and assets.

Introduction

An updated will is one of the most important legal documents you can create to protect your family and assets. This legal instrument ensures your wishes are carried out after your passing, providing clear instructions about how your property should be distributed, who will care for minor children, and how your affairs should be managed. Without an updated will, state laws determine what happens to your assets and dependents, which may not align with your intentions. This guide explains the importance of keeping your will current, especially for blended families, same-sex couples, parents with minor children, and individuals with significant assets. Understanding the basics of an updated will can help you make informed decisions to protect your loved ones and provide peace of mind for your family's future.

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Key Things to Know

  1. 1

    Without an updated will, state intestacy laws determine how your assets are distributed, which may not align with your wishes for your family members.

  2. 2

    For blended families, an updated will is essential to ensure all children (biological and step-children) are provided for according to your intentions.

  3. 3

    Same-sex couples benefit from the legal protections an updated will provides, especially in regions where legal recognition may be evolving.

  4. 4

    Naming guardians for minor children is one of the most important functions of a will for parents.

  5. 5

    Your will should be reviewed and potentially updated after every major life event (marriage, divorce, birth of children, significant asset acquisition).

  6. 6

    For those with significant assets, an updated will should work in conjunction with trusts and other estate planning tools to minimize taxes and maximize asset protection.

  7. 7

    Digital assets, pets, and sentimental items should be specifically addressed in your updated will to avoid confusion or conflict.

  8. 8

    Working with an estate planning attorney familiar with your specific family structure is highly recommended to ensure your will accomplishes your goals.

Key decisions before you file

Before you file a Updated Will in Montana, a few decisions shape the document: which option to choose and what each one means. The Updated Will guide walks through them.

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Montana Requirements for Updated Will

  • Testamentary Capacity (Montana Code Annotated § 72-2-521)

    Under Montana law, the testator must be at least 18 years of age and of sound mind to execute a valid will. Sound mind means the testator understands the nature and extent of their property, the natural objects of their bounty, and the disposition they are making of their property.

  • Will Execution Requirements (Montana Code Annotated § 72-2-522)

    A will must be in writing, signed by the testator or by someone else at the testator's direction and in their presence, and witnessed by at least two competent individuals who also sign the will within a reasonable time after witnessing the testator's signature.

  • Self-Proved Will (Montana Code Annotated § 72-2-524)

    A will may be self-proved at the time of execution or at a later date by acknowledgment by the testator and affidavits of witnesses, each made before a notary public and evidenced by the notary's certificate under official seal.

  • Holographic Will (Montana Code Annotated § 72-2-523)

    Montana recognizes holographic wills, which must be written entirely in the testator's handwriting and signed by the testator. No witness signatures are required for holographic wills.

  • Revocation of Will (Montana Code Annotated § 72-2-527)

    A will or any part thereof is revoked by a subsequent will that revokes the prior will or part expressly or by inconsistency, or by performing a revocatory act on the will with the intent to revoke it.

  • Revival of Revoked Will (Montana Code Annotated § 72-2-529)

    A will that is revoked by a subsequent will can only be revived if the subsequent will is revoked and the testator intends to revive the original will or if the testator executes a new will.

  • Omitted Spouse (Montana Code Annotated § 72-2-332)

    If a testator's spouse married the testator after the execution of the will, the omitted spouse receives an intestate share unless the will was made in contemplation of the marriage or the spouse was provided for outside the will.

  • Pretermitted Children (Montana Code Annotated § 72-2-333)

    Children born or adopted after the execution of a will who are not provided for in the will are entitled to a share of the estate as if the testator had died intestate, unless it appears the omission was intentional.

  • Elective Share of Surviving Spouse (Montana Code Annotated § 72-2-221)

    A surviving spouse has the right to take an elective share of the augmented estate, which is a percentage based on the length of the marriage, ranging from 3% to 50%.

  • Exempt Property and Allowances (Montana Code Annotated § 72-2-413, § 72-2-412, § 72-2-414)

    The surviving spouse or minor children are entitled to exempt property up to $15,000 in value, a homestead allowance of $22,500, and a family allowance during administration.

  • Personal Representative Appointment (Montana Code Annotated § 72-3-502)

    The will should name a personal representative to administer the estate. If none is named or the named person cannot serve, the court will appoint one according to statutory priority.

  • No-Contest Clause (Montana Code Annotated § 72-2-537)

    Montana recognizes no-contest clauses (in terrorem clauses) in wills, which can disinherit beneficiaries who challenge the will, though such clauses may not be enforced if the contest is brought in good faith and with probable cause.

  • Simultaneous Death (Montana Code Annotated § 72-2-811)

    Under the Uniform Simultaneous Death Act, if there is no sufficient evidence that persons have died otherwise than simultaneously, the property of each person shall be disposed of as if they had survived the other.

  • Federal Estate Tax Compliance (26 U.S.C. § 2001 et seq.)

    The will should include provisions addressing federal estate tax issues, including marital deduction planning, portability elections, and generation-skipping transfer tax considerations for estates exceeding the federal exemption amount.

  • Digital Assets (Montana Code Annotated § 72-31-101 et seq.)

    Montana has adopted the Revised Uniform Fiduciary Access to Digital Assets Act, which allows a testator to give directions for the disclosure of digital assets to fiduciaries in a will or other document.

  • Guardian Appointment for Minor Children (Montana Code Annotated § 72-5-211)

    A will may appoint a guardian for minor children. The court will appoint the person nominated in the will unless the court finds the appointment would be contrary to the best interests of the minor.

  • Trust Provisions (Montana Code Annotated § 72-38-101 et seq.)

    A will may establish testamentary trusts governed by the Montana Uniform Trust Code, which provides rules for trust creation, modification, termination, and administration.

  • Choice of Law (Montana Code Annotated § 72-3-107)

    The meaning and legal effect of a will are determined by the local law of the state selected by the testator in the will, provided the law of the chosen state has a substantial relationship to the will.

  • Ademption by Extinction (Montana Code Annotated § 72-2-616)

    If specifically devised property is not in the testator's estate at death, the beneficiary will not receive the property or its value unless protected by anti-ademption statutes.

  • Abatement (Montana Code Annotated § 72-3-901)

    When the assets of the estate are insufficient to pay all devises in full, Montana law establishes an order of abatement for reducing devises, unless the will provides otherwise.

Frequently Asked Questions