Short answer
Usually, yes — if the house is part of your father’s probate estate, any money left after valid debts, taxes, lien payoffs, and administration costs are paid will become estate assets and will be distributed according to your father’s will (subject to Montana’s probate rules and any statutory protections for a surviving spouse or minor children). But there are important exceptions: property that passes outside probate (for example, because it was owned jointly with right of survivorship or had a transfer-on-death designation) does not become part of the probate estate and will not be distributed under the will.
Detailed answer — how this works under Montana law
When someone dies, their assets fall into two broad categories:
- Non-probate assets: assets that pass directly to someone else by operation of law or contract (examples: property owned jointly with right of survivorship, assets with named beneficiaries, certain trusts, or property with a transfer-on-death designation).
- Probate assets: assets that are owned solely by the decedent in their name and must go through the probate process so the personal representative (executor) can collect assets, pay debts and expenses, and distribute what remains according to the will (if there is one) or by statute if there isn’t.
If the house is a probate asset, the person who administers the estate (the personal representative) has authority under Montana probate law to sell estate property when necessary to pay debts, taxes, or to make distributions. The sale proceeds become part of the estate’s liquid assets. The representative must first use estate funds to pay:
- Valid creditor claims (including a mortgage or liens that attach to the property).
- Funeral expenses, taxes, and fees of administration (attorneys’ fees, court costs, appraisal fees, commission to the personal representative if allowed).
- Any other lawful obligations or priority claims required under Montana law.
After paying those items, the remaining cash is distributed pursuant to the decedent’s will. If the will leaves assets to named beneficiaries, the personal representative distributes the net estate to those beneficiaries in accordance with the will’s terms and any applicable provisions in Montana probate law.
Key exceptions and items to check in Montana:
- Joint ownership with rights of survivorship: If your parents owned the home jointly with a right of survivorship (for example, joint tenancy with right of survivorship), the surviving co-owner usually becomes the sole owner automatically and the home (or its sale proceeds, if the surviving co-owner later sells) is not probate property and therefore not distributed under the will.
- Transfer-on-death (TOD) deed or beneficiary deed: Montana permits certain non-probate transfer devices that let an owner name a beneficiary who receives title at death. Such transfers bypass probate and do not go through the will. Check the deed recorded at the county clerk and recorder’s office.
- Surviving spouse protections and exemptions: Montana law provides certain protections for a surviving spouse and dependent children (for example, allowances, exemptions, or homestead rights). These protections can affect what is available for distribution under the will. See Montana probate statutes for detail: Montana Code Annotated, Title 72 (Probate and Trusts): https://leg.mt.gov/bills/mca/ (see Title 72).
- Creditor claim deadlines: Montana law sets timelines for creditors to present claims against the estate. Executors generally must follow these procedures before making final distributions. Make sure the estate has provided proper notice to creditors and allowed the claims period to expire or resolved claims before final distributions.
Useful official resources:
- Montana Code Annotated — general portal for statutes, including probate: https://leg.mt.gov/bills/mca/ (see Title 72 for probate and trust rules)
- Montana Judicial Branch — probate self-help resources: https://courts.mt.gov/selfhelp/probate
In short: if the home was part of the probate estate, the sale proceeds (after paying debts and administration costs) generally flow into the estate and are distributed under your father’s will. If the home passed automatically to the surviving parent or another person outside probate, the will does not control those proceeds.
Helpful hints
- Confirm how the house was titled before it was sold. Look at the recorded deed at the county clerk’s office to see whether it was owned solely by your father, jointly, or had a transfer-on-death designation.
- Ask the personal representative (executor) for a copy of the probate petition, the inventory of estate assets, and an accounting or distribution plan. Executors must account for estate assets and how they are spent or distributed.
- Check for mortgages or recorded liens. Mortgage lenders and lienholders must be paid from sale proceeds before distributions to beneficiaries.
- Confirm whether the estate opened probate. If probate was opened, review probate filings (petition, inventory, creditor notices, and final account) in the county where your parent lived. Probate court records are public and list sales and distributions.
- Be aware of timelines. Creditors have a limited time to file claims; executors often wait until that period passes before making final distributions.
- If you suspect the property sold improperly or the executor is not following the law (for example, failing to provide an accounting or distributing assets prematurely), consider contacting a probate attorney to discuss options such as requesting a court accounting or filing an objection in probate court.
- Ask about surviving-spouse protections. Even if the will leaves everything to someone else, Montana law can give a surviving spouse certain allowances or rights that must be honored first.
- If you need statutes or forms, start at the Montana Code portal: https://leg.mt.gov/bills/mca/ and the Montana courts’ probate self-help page: https://courts.mt.gov/selfhelp/probate.