Detailed Answer
Short answer: When a person dies in Montana without a valid will, the decedent’s surviving children (and the descendants of any predeceased child) inherit under Montana’s intestacy rules by representation — meaning the estate is divided into equal shares by generation, and a deceased child’s share passes to that child’s descendants. The distribution and related rules are set out in the Montana Code (Title 72, Chapter 2).
How shares among children are determined
Under Montana law, descendants inherit by representation. Practically this means:
- If the decedent is survived by multiple children and all of those children are alive, the estate (after paying valid debts and funeral costs and after any share that goes to a surviving spouse) is divided into equal shares — one share per surviving child.
- If one child predeceases the decedent but leaves children (the decedent’s grandchildren), that predeceased child’s share is inherited by his or her descendants (the grandchildren) by right of representation — generally divided equally among those grandchildren (per stirpes distribution).
- If a predeceased child left no descendants, that child’s share is divided among the surviving children (or their descendants) according to the representation rules — it does not automatically go to the decedent’s other relatives unless no descendants exist.
Examples
Example 1 — Three children alive: If a decedent leaves three surviving children and no spouse, each child receives one-third of the intestate estate.
Example 2 — One child predeceased but left two children: If the decedent had three children but one predeceased and left two children (the decedent’s grandchildren), the estate is divided into three equal shares. The predeceased child’s one-third is split equally between that child’s two children (each receiving one-sixth of the whole); the two surviving children each receive one-third.
Example 3 — A child predeceased leaving no descendants: With three children where one predeceased without descendants, the estate is split between the two surviving children (each receiving one-half) under representation rules.
Who is considered a “child” for intestacy purposes
- Biological children generally inherit as children.
- Adopted children are treated as the natural children of the adoptive parent and inherit from the adoptive parent (Montana treats legally adopted children as heirs of the adoptive parent).
- Children born after the decedent’s death (posthumous children) are usually entitled to inherit if they are legally determined to be the decedent’s children under Montana law.
- Putative or unmarried parents’ children: paternity determinations affect inheritance rights. If paternity is established under Montana law, the child inherits as a descendant.
- Stepchildren who were not legally adopted do not inherit as children under intestacy.
Concurrent death and other special rules
If a child and the decedent die in circumstances where order of death cannot be determined, Montana’s statutes on simultaneous death and survivorship govern whether that child is treated as having predeceased the decedent. These rules affect whether the child’s descendants inherit the child’s share. For precise language, see Montana’s intestate succession provisions.
For the controlling statutory language on distribution to descendants and representation, see Montana Code Annotated, Title 72, Chapter 2 (Intestate Succession): MCA 72-2-102 and MCA 72-2-103. (These sections explain how property passes to descendants and how representation operates.)
Helpful Hints
- Gather key documents early: death certificate, marriage certificates, birth certificates, adoption papers, and any documents showing paternity. These prove who qualifies as an heir.
- Make a family tree: Identify all children, grandchildren and their birthdates so shares can be calculated under representation rules.
- Check for a surviving spouse: Montana law gives certain shares to a surviving spouse that can affect how much the children receive. Confirm marital status and dates.
- Consider probate triggers and small‑estate procedures: Probate is usually required to transfer title to assets; if the estate is small there may be simplified procedures. Ask a Montana probate attorney about thresholds and forms.
- When a child predeceased the decedent with descendants, those descendants generally step into the deceased child’s share (per stirpes). If the child left no descendants, the distribution shifts to the remaining descendants as the statute directs.
- If paternity or adoption is unclear, act quickly to preserve or establish legal rights — DNA or adoption records may be needed to prove heirship.
- Consult a Montana probate or estate attorney if there are blended families, contested paternity, unknown heirs, or unusual assets (business interests, property in other states, etc.).
Disclaimer: This article explains general rules under Montana law and is for educational purposes only. It is not legal advice. For advice specific to your situation, consult a licensed Montana attorney.