How to get a decedent’s will filed in Montana when a family member refuses to produce the original

Short answer: File a probate petition in the county where your father lived. If the original will is being withheld, you can ask the court to compel production (subpoena, contempt), or to admit a copy or prove a lost will if the original cannot be produced. Act quickly and consider getting a probate attorney. This is general information—not legal advice.

Disclaimer

This article explains Montana probate options and common steps people take when an original will is withheld. It is educational only and not legal advice. For advice about your specific situation, contact a qualified Montana probate attorney.

Overview: the basic pathway under Montana law

If someone dies in Montana, the will should be filed with the district court in the county where the decedent was domiciled. The court then opens a probate estate and determines whether the instrument offered as a will is valid and can be admitted to probate. If the original will exists but a person who has it refuses to deliver it, you have several options:

1. Try informal collection (written demand, certified mail).
2. File a petition to open probate and ask the court to issue a subpoena or an order to produce the will.
3. If the original cannot be produced, seek admission of a copy or proof of a lost will under applicable Montana probate procedures.
4. If someone wrongfully took or destroyed the will, consider civil remedies (motion for sanctions, petition to declare disposition) and, in some cases, criminal complaint (conversion/theft), if appropriate.

Step-by-step actions you can take

1. Confirm where to file and act promptly

File the will and petition in the district court for the county where your dad was domiciled at death. Courts expect prompt estate administration so property can be managed and creditors dealt with. For access to Montana statutes and more detail about decedents’ estates, see the Montana Code Annotated (Title 72): https://leg.mt.gov/bills/mca/.

2. Make a written demand and preserve evidence

Send the person who has the original a written demand for the document—preferably by certified mail with return receipt. Keep copies of the will (if you have a photocopy), emails, text messages, and any witnesses who can say they saw the will. Document dates and communications. Courts look more favorably on parties who made reasonable attempts to obtain the original before seeking court intervention.

3. File a probate petition anyway — and ask the court to compel production

Even if you don’t have the original, you can start the probate by filing a petition to open an estate and asking the court to appoint a personal representative. When you file, tell the court that a will exists (or is alleged to exist) and that someone is withholding the original. The court can issue subpoenas or orders requiring production of documents. If the person disobeys, the court can impose sanctions or find contempt.

4. Seek admission of a copy or proof of a lost will if the original is unavailable

If the original cannot be produced, Montana courts may allow admission of a copy or proof of the content of the will based on testimony of witnesses and proof that the original was executed properly and subsequently lost, destroyed, or withheld. The court will require convincing evidence about the will’s contents and the facts surrounding the loss or withholding. When someone wrongfully withholds the original, courts often permit admission of a copy while penalizing the withholder if appropriate.

5. Use discovery tools: subpoena, deposition, motion to compel, or hearing

After you file the petition, use the court’s discovery tools. A subpoena can require the step-sister to produce the original will at a court hearing. If she refuses, you can seek a hearing and request sanctions or a contempt order. Your attorney can prepare these motions and attend hearings with you.

6. Consider civil remedies or criminal referral if the will was stolen or destroyed

If the will was intentionally stolen, altered, or destroyed, you may have civil claims (conversion, replevin) and, depending on facts, law enforcement might investigate criminal conduct. Discuss with counsel whether a civil motion or a criminal complaint is appropriate.

How Montana courts treat withheld or lost wills (what to expect)

Montana courts will try to determine the decedent’s intent and preserve the estate for creditors and beneficiaries. If the original will cannot be produced because a person who benefits from it wrongfully withholds it, the court may admit a copy or other proof of the will’s terms. The court also can penalize the person withholding the document. Because rules and standards vary by situation, a local probate attorney can explain how these principles apply to your facts.

Practical example (hypothetical)

Suppose your father signed a written will leaving his house to you. Your step-sister took the original will after the funeral and says she will not give it to you. You should:

• Send a certified letter requesting return of the original will and keep proof you sent it.
• Gather any copies and witnesses who saw your father sign the will.
• File a probate petition in the county where your father lived, tell the court someone is withholding the original, and ask the court to issue a subpoena for the document.
• If she still refuses, ask the court to admit a copy or allow witnesses to testify about the will and to consider sanctions against the withholder.

Helpful Montana resources and links

• Montana Code Annotated (look under Decedents’ Estates, Title 72): https://leg.mt.gov/bills/mca/
• Montana Courts — Self-help and probate information: https://courts.mt.gov/selfhelp
• If you need a lawyer: Montana State Bar Lawyer Referral (search for probate or estate attorneys in your county)

Helpful hints

• Act quickly: open probate promptly to protect assets and meet deadlines.
• Keep a record: save all communications, copies of the will, receipts, and witness names.
• Send a written demand: certified mail creates a record of your request for the original.
• Use court tools: a subpoena or motion to compel often gets documents produced.
• Be prepared to prove the will: gather witnesses who saw execution and any drafts or copies.
• Consider negotiation or mediation: sometimes a formal demand from an attorney resolves the issue quickly.
• Get legal help: probate procedure and court filings are technical; a local attorney can file petitions and handle hearings efficiently.

When to call an attorney

Call a probate attorney if the person withholding the will won’t cooperate, if there are disputes among heirs, if assets are at risk, or if you need help drafting and filing the necessary petitions and motions. An attorney can also advise whether a criminal referral is appropriate if the will was stolen or destroyed.

Again, this is educational information, not legal advice. Contact a Montana probate attorney for guidance tailored to your situation.