Probate is a court-supervised process to confirm your last will and testament, if any, and appoint a personal representative to administer your estate in accordance with Montana law.  Your will is not effective without a probate.  Probates, in Montana, can be formal or informal. 

Commonly, informal probates are used, which take a minimum of six months to complete but can often take a year or more.  This article discusses, generally, what to expect in an informal probate.    

A probate is typically required when your assets will not otherwise transfer by law (ex: joint tenancy or TOD/POD beneficiary designations), include real property, and/or are valued at over $100,000.  In an informal probate, the clerk of court issues an order appointing the personal representative and authorizing the personal representative to gather your assets, pay expenses and creditors, and distribute your assets in accordance with the terms of your last will and testament, or if none, Montana law.  Court hearings are not required but are available as necessary to resolve disputes with creditors or beneficiaries.

A personal representative will, commonly, take the following actions in administering an estate:

1. Provide certified copies of the death certificate to life insurance companies, retirement plan administrators, banks and         other institutions you had accounts
2. Open an estate bank account
3. Collect and inventory estate assets, including appraisals and valuations
4. Maintain the estate property, and sell estate property as necessary
5. Advertise for any claims against the estate and pay them in order of priority
6. Provide interim management for business interests, if necessary, and collect rents when due, if any
7. Complete and file state and federal estate and income tax returns, if necessary
8. Distribute the estate property according to the last will, or Montana law
9. Prepare and provide final accounting to heirs and devisees
10. Obtain receipts from heirs and devisees, if appropriate.

The documents the personal representative will need to sign and file with the Court to open the Probate, include:

1. Application for Appointment of Personal Representative
2. Letters This document states your written agreement to serve as Personal Representative and the Court’s approval of your appointment.
3. Notice and Information to Heirs and Devisees
4. Notice to Creditors This Notice will be published in a local newspaper, and creditors have four months after the first date the Notice is published to submit a written claim for payment from the estate. Any claim that is received after this four‑month period expires may be disallowed, meaning the estate may elect not to pay their claim. Creditors can include medical providers, credit card companies, utility companies and so forth.

After the probate is opened, the personal representative must complete an Inventory of your property, and its value, as of your death, which must be provided to the heirs and devisees within nine (9) months after the probate was opened.  This includes all assets such as real property, business interests, bank and investment accounts, stock, vehicles, precious metals, fine art, and any personal property of particular value or collections such as coins or stamps.  

There may be non‑probate property of which personal representative needs to be aware, but over which they have no control. For example, this could include an asset held in joint tenancy between two or more owners; when one owner dies, their interest automatically transfers to the other owners. Or an asset on which a POD or TOD beneficiary is named, such as a retirement plan or life insurance policy, or a bank or investment account, which paid out to a named beneficiary. These assets may still need to be identified and valued, if necessary for filing a federal estate tax return.  

The personal representative should work with a CPA to prepare and file your final income tax return, any estate income tax returns, and the federal estate tax return if required.   

To conclude the probate, the personal representative will distribute all of the assets, and must prepare a final accounting of their handling of the estate’s assets and monies, beginning with the assets as of the date of death, plus any income received during the administration of the estate (tax refunds, dividends, and sales of estate property) and less all estate expenses paid (funeral, accounting fees, legal fees, upkeep of estate property, and personal representative’s compensation).  This final accounting is provided to the heirs and devisees. 

The personal representative can work with an attorney to assist with preparing and filing the probate documents, including any additional documents that may be needed to properly transfer estate assets (such as deeds).

After fully administering the estate, including filing all necessary tax returns, paying any taxes and all expenses, and distributing all the estate property, the personal representative will sign and file with the court a sworn statement to close the probate. 

Worden Thane’s attorneys are experienced and can assist personal representatives to open a probate and properly administer the probate estate.