Understanding Probate in Common Form in Montana

Short answer: “Probate in common form” (often called informal or ordinary probate in other states) is the straightforward court process used to admit a decedent’s will and appoint a personal representative without the formal, trial-style proofs. It is typically faster, less expensive, and used when there is no immediate dispute about the will. This article explains how the process generally works under Montana procedures, what to expect, and when you should consider hiring an attorney.

What “probate in common form” means

Probate in common form is an administrative court procedure to open a decedent’s estate and admit a will to probate based on routine documentary proof. The petitioner (usually the named executor or a family member) submits the original will, a death certificate, and a petition asking the county probate court to admit the will and appoint a personal representative. If no one timely contests the admission, the court will typically admit the will in common form and issue letters testamentary or letters of administration to the appointed representative.

How it differs from formal or solemn proof

• Common form (informal): The court admits the will based on routine papers and, if needed, short testimony or affidavit. It assumes the will is valid unless someone timely challenges it.
• Solemn form (formal): Required when there is an active contest or when a hearsay-only proof is admitted. Solemn form requires stricter proof, often live testimony from subscribing witnesses under oath, and functions like a court trial to establish validity.

Who can start probate in common form

Typically, any interested person can file a petition to probate the will in common form. Most commonly the named executor (personal representative) does this. If there is no will, an interested person can seek appointment as administrator. The county probate court handles these petitions.

Typical steps in Montana (what to expect)

1. Gather documents: original signed will, certified death certificate, list of the decedent’s assets and known heirs/beneficiaries.
2. File petition: submit a petition for probate and appointment with the county probate court and pay filing fees.
3. Notice: the court or petitioner will provide notice to heirs and beneficiaries as required under Montana procedure.
4. Hearing or affidavit proof: if the court needs more than the papers provide, the petitioner may present affidavits or brief testimony; if no one contests, the will is usually admitted in common form.
5. Letters issued: once the court admits the will, it issues letters testamentary or letters of administration that authorize the personal representative to act for the estate.
6. Administration: the personal representative inventories assets, pays creditors and taxes, and distributes remaining property to heirs/beneficiaries under the will and Montana law.

Why people choose common-form probate

• Speed: Often faster than formal proceedings.
• Cost: Fewer court appearances and simpler proof generally mean lower legal fees.
• Simplicity: Works well when the estate is not contested and the will is clear.

When common-form probate may not be appropriate

• Disputes over the will’s validity (e.g., claims of forgery, undue influence, lack of capacity).
• Contested heirship or unclear asset ownership.
• Complex estates with tax or creditor disputes.

What happens if someone contests the will

If an interested person files a timely contest or objection, the court may require solemn-form proof. That moves the case into a more formal evidentiary process where witnesses testify under oath and the court resolves contested issues. A contested case can significantly increase cost and time.

Relevant Montana authority and where to read more

Montana’s probate and fiduciary rules and statutes govern how wills are admitted and how personal representatives are appointed. For the authoritative text of Montana statutes and probate rules, consult the Montana Code and the Montana courts’ self-help resources:

• Montana Code Annotated (MCA) — official compilation of state statutes: https://leg.mt.gov/bills/mca/
• Montana Judicial Branch — self-help and probate information: https://courts.mt.gov/selfhelp

Because specific procedures, notice requirements, and timelines are set by statute and court rule, review the applicable Montana statutes and local court rules before you act or consult an attorney who practices probate in Montana.

When to consult an attorney

• If anyone disputes the will’s validity or your appointment as personal representative.
• If the estate is large, complex, or includes out-of-state assets.
• If there are potential tax liabilities, multiple creditors, or business interests involved.
• If you need help preparing petitions, serving notice, or meeting court deadlines.

Helpful Hints

• Locate the original will before you file. Courts normally want the original document to admit it to probate.
• Get a certified copy of the death certificate early; courts and many institutions require it.
• Prepare a short, clear inventory of estate assets and a list of likely heirs and beneficiaries to speed the process.
• Give timely notice to known heirs and beneficiaries to avoid surprises and reduce the chance of contests.
• Ask the court clerk for local probate forms and fee schedules. Counties may have helpful checklists.
• If you expect a dispute, consider consulting an attorney right away — early advice can limit cost and exposure.
• Keep clear records and receipts for all estate transactions to simplify accounting and final distribution.
• Remember that probate can be avoided or simplified in some cases by beneficiary designations, joint ownership, or living trusts — consider estate planning for the future.

Disclaimer: This article is educational and informational only. It does not provide legal advice, create an attorney-client relationship, or substitute for advice from a licensed Montana attorney. Laws and procedures change. For guidance specific to your situation, consult a Montana probate attorney or the county probate court.