Probate Attorneys in Missoula

At Jones & Cook Attorneys at Law, our Probate lawyers and staff are sensitive to family dynamics and the common problems encountered on 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 Jones & Cook 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 assists 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 assists clients in the planning and implementation of charitable contributions and enterprises, including the drafting and administration of charitable trusts and foundations.

The attorneys at Jones & Cook 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 or North Dakota probate matter, please contact us at (406) 543-3800 to schedule a Free Consultation with one of our attorneys.

Helping You Before and During the Probate Process

Use an Experienced Probate Lawyer to Help you Navigate the Process

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.

Understanding Montana Probate Law

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;
and 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; and
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 an 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.

Avoiding Probate in Montana

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.

Joint Ownership

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.

Living Trusts

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.

Payable-on-Death Designations for Bank Accounts

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.

Transfer-on-Death Deeds for Real Estate

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.

Transfer-on-Death Registration for Securities

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 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 Probate Shortcuts

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.

Simplified Probate Procedures

Montana has a simplified probate process for small estates. To use it, an 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, less 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, and;
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.

Small Estate Affidavit

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, less 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.

Experienced Montana Probate Attorneys

The Montana probate lawyers at Jones & Cook Attorneys at Law, 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 at (406) 543-3800, as soon as possible to set up a Free Consultation.

Frequently Asked Questions

Probate is a court-supervised process of distributing and overseeing property after a person dies. The purpose of probate is to determine the wishes of the deceased, pay debts, and to distribute the property according to the decedent’s wishes. The following occurs during probate:

  • Determination of the personal representative or the appointment of an administrator
    Authentication of the will
    Identification and inventory of the decedent’s property
    Identification of heirs and beneficiaries
    Payment of debts and taxes
    Distribution of property according to a will or according to state law

Many individuals take into consideration avoiding probate in deciding on an Estate Planning option.

Our attorneys find that one of the single greatest factors that goes into someone’s experience dealing with a probate court is the expectations held at the beginning of the probate case. Some clients have totally unrealistic expectations, which is understandable, because they have never been through it before. Other clients may have no expectations whatsoever; they simply have questions about how probate courts work. Generally, the more realistic your expectations, the less frustrating the process will be.

Yes, in some states the law provides a way of avoiding probate by allowing an exemption or a simplified probate process for small estates only worth a certain amount.

An personal representative named in a will or an administrator appointed by a probate court is responsible for overseeing the probate process. A probate judge appoints an administrator if an personal representative is unnamed in a will or if the decedent died without a will. Usually, the administrator is a relative or the person inheriting the majority of the decedent’s estate. The personal representative or the administrator performs the following duties:

  • Obtains the decedent’s original will
    If necessary, hires a probate attorney
    Initiates and manages the probate process
    Cancels credit cards
    Notifies government entities of the decedent’s death
    Manages assets

In many situations, the personal representative oversees probate, while a probate lawyer performs the bulk of the work. If probate proceedings are unnecessary, the family of the decedent chooses an informal estate representative to pay debts and to distribute the property. Usually the estate representative is a family member or a close friend of the decedent.

Yes, it can, to an extent. When you devise assets through a Last Will and Testament or leave no will and make no other arrangements for your assets, Montana’s default probate process kicks in. But many people would like to avoid the full probate process, given that involving a probate court and potentially a court-appointed personal representative can be time consuming and expensive. Since probate proceedings happen in court, probate can also be invasive—publicly airing details of assets a family might not be comfortable sharing.

Some estate planning options include trusts; joint tenancy with right of survivorship; Payable-on-Death (POD) bank accounts; and Transfer-on-Death (TOD) securities and deeds. Exercising these options prevents named assets from going through probate and creates a mechanism for making sure an asset goes to whomever you intended. Even if your will must go through the probate process, however, for reasons such as having courts sort through family disputes, careful estate planning can make the process easier on all involved. Jones & Cook Attorneys at Law will counsel you on your estate planning options and make sure it’s done right.

Property you transfer into a living trust before your death doesn’t go through probate. The successor trustee — the person you appoint to handle the trust after your death — simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and there are no lawyer or court fees to pay. When all of the property has been transferred to the beneficiaries, the living trust ceases to exist.

No. A creditor who wins a lawsuit against you can go after the trust property just as if you still owned it in your own name. Generally, after your death, all property you owned — including assets held in a living trust — is subject to your lawful debts. For example, if your house is held in trust and passes to your children at your death, a creditor could demand that they pay the debt, up to the value of the house. Ownership of real estate is always a matter of public record, so creditors can always find out who inherited real estate. It can be more difficult for creditors to know who inherits other property, however (because a trust document, unlike a will, is not a matter of public record), and they may not bother tracking it down. On the other hand, probate can also offer a kind of protection from creditors. During probate, known creditors must be notified of the death and given a chance to file claims. If they miss the deadline to file, they’re out of luck forever.

Because probate involves court costs and attorney fees, avoiding probate will save time and money. The probate process usually takes between six months to a year. The personal representative of the will or a court-appointed administrator will handle probate, and, if necessary, hire a probate attorney. The personal representative or the administrator is responsible for filing the appropriate paperwork with the probate court after the decedent’s death.

During probate, the following occurs: the probate court receives a copy of the decedent’s will, probate assets are identified and inventoried, contact is made with heirs, beneficiaries, and creditors, and debts and taxes are paid. The last step in the probate process is the distribution of probate assets. In some situations, the personal representative may have to sell assets, such as real estate and securities, to pay outstanding debts or to make cash bequests specified by the will.

No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In Montana, for example, you can pass up to $100,000 of property without probate, and there’s a simple transfer procedure for any property left to a surviving spouse. Additionally, property that passes outside of your will is not subject to probate.

Probate is the court process of wrapping up a deceased person’s estate.It’s the state’s way of making sure that the estate pays its debts and tax obligations and that estate property goes to the correct recipients. Probate is often time-consuming and expensive. It can be useful for some estates—especially those that are heavily in debt, because it manages communications with creditors. But for most simple, straight-forward estates, probate is a waste of time and money.

By default, your estate will go through probate after you die.But with some planning you can minimize your estate’s time in probate, or you may be able to avoid probate all together.To keep property out of probate, instead of using a will, you can use other ways to transfer property–like living trusts, property ownership with rights of survivorship, and transfer-on-death deeds or designations. Property transferred through these types of devices do not go through probate.

All assets that the deceased owns at the time of his or her death will be subject to probate unless the asset has been placed in a form that allows it to avoid the probate process. For example, some accounts held in joint tenancy, certain accounts held by a trust, payable on death accounts those assets are not subject to probate and thus pass outside of probate court. Also, some assets that pass by means of a beneficiary like retirement accounts or life insurance policies can avoid probate as long as the beneficiary is not the estate of the deceased.

The probate process does not have a fixed time limit. Typically, the process takes anywhere from a few months to one year. Different factors can make the process take longer, such as the size of the estate, how long it takes to find a will, and how long it takes to appoint an personal representative and notify the beneficiaries of the decedent. If the will is contested, the probate process will continue until all matters are resolved, which could end up taking years.