The loss of a loved one is painful. The last thing that you want to think about is navigating the complicated legal processes that are required to settle their estate. However, to ensure that your loved one’s estate is properly settled and its assets transferred to family and friends according to their will or Montana law, it is important to understand how estate administration works.
Probate and Estate Administration
Probate is the legal process during which a decedent’s will is validated and the personal representative appointed. The job of the personal representative is required to perform the duties and responsibilities necessary to manage the decedent’s estate through the probate process and ultimately distribute estate assets. The Montana Probate Code governs the process. Mont. Code Ann. § 72-1-101 et seq. Once the personal representative is appointed, the personal representative begins the process of winding down the affairs of the decedent, paying their debts and taxes, and distributing their assets according to the terms of the decedent’s will or state law.
In Montana, the administration process will take at least 6 months, but can extend to over a year. There are many factors that determine the length of probate such as the type of assets in the estate, hard to find heirs, and disagreements among the parties.
On the other hand, if the estate qualifies for special expedited procedures, asset distribution can occur relatively soon after the decedent’s death. For example, if the estate has assets with a value of no more than $50,000, assets can be distributed without having to go through probate. Instead, by filing an affidavit pursuant to a procedure called Collection of Personal Property by Affidavit, someone entitled to property that is part of a decedent’s estate but held by another person, can request delivery of that property. Mont. Code Ann. § 72-3-1101. There is a 30-day waiting period following the death of the decedent before the affidavit can be filed.
Another option for small estates is summary administration. While such estates still must go through an administration process, it is a simpler process resulting in asset distribution that is much quicker than formal probate. To qualify, the value of estate assets much be less than the homestead allowance, exempt property, family allowance, expenses of administration, and reasonable expenses related to the decedent’s last illness and funeral. Mont. Code Ann. § 72-3-1103
Problems During Probate
Probate administration is not always without complications. Family dynamics can lead to disagreements among beneficiaries or between beneficiaries and the personal representative. When the probate disputes cannot be settled through out-of-court negotiations, they must be settled in court through litigation. Probate litigation is not only frustrating and stressful, it also often results in significant delays in the process and added expense to the estate.
Probate litigation can be based on a wide range of scenarios including:
- Will contests based on claims of undue influence, lack of testamentary capacity, duress, fraud, or improper execution.
- Interference with inheritance and contract, where there are accusations that someone intentionally prevented another from receiving an inheritance.
- Breach of fiduciary obligations based on allegations that the personal representative or trustee mismanaged estate or trust assets or poorly performed their duties.
- Business-related disputes such as business succession challenges
Consequences of Not Have Having a Will
If your loved one died without a will, their estate will still have to go through an administration process. However, instead of their assets being distributed to beneficiaries mentioned in a will, they will go to the decedent’s “next of kin” under state intestate succession laws. Mont. Code Ann. § 72-2-112. In Montana, the surviving spouse, parents, and children are a decedent’s primary heirs. For example, if the decedent dies and is survived by a spouse and by parents, but has no children, the surviving spouse inherits the first $200,000 of the decedent’s intestate property, plus 3/4 of the balance. The parents will inherit the rest.
Note that only probate property is passed through intestate succession. Probate property includes assets solely owned by the decedent such as personal property, real estate, and bank accounts. Property such as real estate held in joint tenancy, retirement plans such as 401(k) plans with survivorship rights, and money in payable-on-death bank accounts is not probate property and would not pass to intestate heirs.