MONTANA PROBATE LAW 

Experienced Montana Probate Law Attorneys

Probate in Montana can be a complicated process, not because the statutes require extraordinary measures, but because the Personal Representative is provided with little guidance to actually carry out his/her duties. Montana has adopted in most part the Uniform Probate Code, which in turn allows for and promotes the use of informal probate administrations; i.e. probate administrations requiring little to no court supervision. Like most States, the probate process in Montana becomes more involved the larger the estate. Except for probate estates consisting of tangible personal property valued less than $50,000.00, every probate estate with property valued more than $50,000.00 or any probate estate having a real property interest in it must proceed with an administration through the appropriate Montana district court. There are essentially three forms of probate administration in Montana: informal, formal, and special. Regardless of the type of administration, no person may commence a probate administration in Montana more than three years after the decedent's death, except in limited circumstances and then only for limited purposes.

Informal Probate Administration

• Informal administration is the most common type of probate administration in Montana. The applicant for informal probate administration, once appointed by the court, assumes the fiduciary role of Personal Representative and proceeds with the administration without court intervention, or supervision of any kind, unless special circumstances exist or the court so orders otherwise. The personal representative is guided in his or her fiduciary role by Montana's probate statutes and the assistance of legal counsel. The personal representative and legal counsel will apply for informal probate administration in those probate estates where there are no issues involving questions surrounding the decedent's death, no potential for a Will Contest or heirship disputes, no pre- or post- death litigation, little likelihood of contentious creditor claims, and low possibilities of other matters which might require court intervention.
• Formal Probate Administration.
• Formal probate administration occurs when any of the above circumstances warrant. To commence a formal administration, a person must file a petition before the court requesting a judicial order of adjudication for the particular issue at hand. The petition must contain all relevant facts as well as such additional information as required by MCA 72-3-301, dealing with Montana's intestacy laws. The petition may further request formal admission of the decedent's Will to probate, set aside an informal administration, or other relief commensurate with the administration. Regardless, an informally appointed personal representative must refrain from exercising fiduciary powers pending the court's determination at the formal hearing. A formal hearing must set and proper notice given before the court will entertain the petition.
• Montana also has two types of "special" administrations, which may occur in formal or informal proceedings. A "supervised" administration is one where the court takes an active role in confirming, approving, or denying action taken or to be taken by the personal representative. Any interested person, including the personal representative, may file a petition to request a supervised administration and/or to have the court continue with a supervised administration if appropriate under the circumstances. A supervised administration subjects the personal representative to additional responsibilities and duties to supply the court with accountings, reports, and to refrain from taking any actions otherwise available in an informal administration, without first obtaining court approval. For example, in any supervised administration, the personal representative may not make any distributions without first obtaining an order from the court approving the same or closing the administration without court order.
• The second type of administration is known as a "special" administration. Special administrations occur when there are unique circumstances requiring immediate action to preserve the estate or where the personal representative is unable to act. This may be the case where probate assets are at risk for loss, theft, dissipation, etc. A special administration appointed informally has only the power and duty to marshal assets, secure them, and account for the same to the appointed personal representative. A formally appointed special administrator has the powers and duties conferred upon him/her by the court; typically the same as those of a regular personal representative.

How Much Does Probate Cost?-Probate fees and expenses vary depending upon the character of the property to be probated, complexity of the administration issues, and similar considerations. Generally the more real estate or hands-on types of assets needing administration, the more costly the probate may be. If federal estate or income taxes are due, the cost of Probate can be much higher, with the responsibility for paying these taxes on the personal representative. Personal representative commissions and attorneys fees seem to be the biggest expenses of estates. Those commissions and fees are tightly regulated in both Nevada and Montana via their respective probate statutes. Our firm is well-versed in probate administration and can guide you through this complicated process in effort to minimize administration costs.