At Bulman Jones & Cook PLLC, our probate lawyers and staff are sensitive to family dynamics and the common problems encountered in probate cases. Our goal is to help personal representatives discharge their duties, distribute assets as required by law, avoid unnecessary conflict and promote family harmony whenever possible. Probate does not have to be a confusing and frustrating maze. We can show you the way.
The Bulman Jones & Cook PLLC probate legal team counsels clients regarding the administration of Wills, Trusts and Estate Planning, the processing of related gift, estate, and fiduciary income tax returns, and audits and disputes. We also assist clients in the representation of estates, trusts, guardians and their beneficiaries in relations and disputes among themselves and with third parties and tax authorities.
In addition, the personal services team drafts Wills, Trusts, Powers of Attorney, Healthcare Instruments, and other agreements and documents to implement Estate Plans. We also assist clients in the planning and implementation of charitable contributions and enterprises, including the drafting and administration of charitable trusts and foundations.
The attorneys at Bulman Jones & Cook PLLC are experienced at representing clients in all matters of Probate, including the adversities and complications that can arise. If you believe you need an attorney in connection with a Montana probate matter, please contact us today to schedule a Free Consultation with one of our attorneys.
Probate is a legal process that takes place in court and monitored by a probate court judge. This process is used to validate a Will. The Probate Court must approve a will before any action can be taken. The Court ensures that the decedent’s wishes are being fulfilled according to Montana state law. Probate Court proceedings in small estates may seek a streamlined process with minimal supervision.
The process includes the payment of any lingering debts and taxes before money or property can be passed to heirs in the form of inheritances. The main objectives in the probate process are the responsibility of the personal representative, who may be a family member, friend, attorney, trust, bank, or other entity. The personal representative, or personal representative, is usually named in the will, if there is one, or appointed by the court.
In the Montana probate process, the personal representative’s responsibilities include:
Notifying heirs and devisees within 30 days of appointment.
Publishing public notices and notifying creditors, in case debtors want to file claims against the estate.
Paying all bills and taxes, and distributing remaining assets to heirs.
Closing the estate, either informally, by filing a statement with the court, or formally through a hearing.
Each of these steps requires careful documentation and is time-sensitive. It can seem like an enormous burden to someone who is not well versed in Montana’s probate laws, especially in the case of a large or complicated estate.
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include:
The decedent may have been improperly influenced in making gifts
The decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed
The decedent did not follow the necessary legal formalities in drafting his or her will
The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:
Collecting all probate property of the decedent
Paying all debts, claims, and taxes owed by the estate
Collecting all rights to income, dividends, etc.
Settling any disputes
Distributing or transferring the remaining property to the heirs
Usually, the decedent names a person (personal representative) to take over the management of his or her affairs upon death. If the decedent fails to name a personal representative, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.
Typically, people may leave property to any person they wish and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent’s wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property.
Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.
Probate court proceedings (during which a deceased person’s assets are transferred to the people who inherit them) can be long, costly, and confusing. It’s no wonder so many people take steps to spare their families the hassle. Different states, however, offer different ways to avoid probate. Here are your options in Montana.
If you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course, it will take some paperwork to show that title to the property is held solely by the surviving owner.
In Montana, this is called Joint tenancy. In which property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts or other valuable property together. In Montana, each owner, called a joint tenant, must own an equal share.
In Montana, you can make a living trust to avoid probate for virtually any asset you own — real estate, bank accounts, vehicles, and so on. You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then — and this is crucial — you must transfer ownership of your property to yourself as the trustee of the trust. Once all that’s done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
In Montana, you can add a “payable-on-death” (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account — your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
Montana allows you to leave real estate with transfer-on-death deeds. These deeds are also called beneficiary deeds. You sign and record the deed now, but it doesn’t take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death.
Montana lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called a beneficiary) form, the beneficiary you name will inherit the account automatically at your death.
No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
Montana offers some probate shortcuts for “small estates.” These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all — by using an affidavit. And that saves time, money, and hassle.
Montana has a simplified probate process for small estates. To use it, a personal representative files a written request with the local probate court asking to use the simplified procedure. The court may authorize the personal representative to distribute the assets without having to jump through the hoops of regular probate.
You can use the simplified small estate process in Montana if the value of the entire estate, fewer liens, and encumbrances, doesn’t exceed homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and medical expenses of the last illness. Mont. Code Ann. § 72-3-1103. The personal representative is required to complete a closing statement that says:
The value of the entire estate was less than these combined amounts
The personal representative has given a full written accounting to the inheritors
The personal representative has distributed the assets to the inheritors
The personal representative must give a copy of this statement to the inheritors and known creditors who might have claims against the estate. Mont. Code Ann. § 72-3-1104.
Montana has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account — gets the affidavit and a copy of the death certificate, it releases the asset.
The out-of-court affidavit procedure is available in Montana if the value of the entire estate, wherever located, fewer liens and encumbrances, is $50,000 or less. There is a 30-day waiting period. Mont. Code Ann. § 72-3-1101.
This procedure is available regardless of the value of all the assets left behind for an inheritor to get unclaimed property from the department of revenue if its value is $5,000 or less. It is also available to get a security (like a stock or bond) changed into the inheritor’s name.
The Montana probate lawyers at Bulman Jones & Cook PLLC, offer confidence and reassurance to our clients and their families by ensuring the process runs as smoothly and thoroughly as possible. If you are looking for a skilled attorney that will lead you through the probate roadblocks, please contact our office as soon as possible to set up a Free Consultation.