Detailed Answer
Short answer: In most cases under Montana law, assets that pass automatically by right of survivorship to your mother do not become part of the decedent’s probate estate and therefore generally are not required to be listed on the probate inventory filed with the court. That said, you should still identify and document those assets and take steps to confirm their non‑probate status because some circumstances can pull those assets into the estate or create creditor or tax issues.
What “right of survivorship” means
Right of survivorship means that two or more people hold title so that when one owner dies, ownership automatically vests in the surviving owner(s) without going through probate. Typical examples: a bank account titled as “A and B, joint tenants with right of survivorship,” or a house held as joint tenants with right of survivorship. These assets commonly pass outside probate.
Why most survivorship assets are not part of the probate inventory
Probate inventory rules require the personal representative to list assets that belong to the decedent’s estate — those that must be administered through the court. Because jointly titled property with survivorship passes by operation of law at death, it usually does not belong to the estate and typically is not included on the court’s inventory of probate assets.
For Montana statutes generally governing wills, administration, and probate procedure, see Montana Code Annotated, Title 72 (Probate). You can read the probate statutes at the Montana Legislature website: https://leg.mt.gov/bills/mca/title_0720/.
Important exceptions and practical issues
- Presumption of ownership and contributions: If the decedent put all or most of the funds or value into a joint account or title but intended those funds for the decedent’s estate, a court could find the funds are estate property (a presumption can sometimes be rebutted by evidence). In that situation the asset could be treated as part of the estate.
- Creditor claims: Creditors may try to reach jointly held assets if they can show the decedent had an ownership interest. Whether creditors can reach those assets depends on the facts and Montana law.
- Fraudulent or improper transfers: If a survivorship arrangement was created to defeat creditors or was the product of undue influence, the arrangement can be attacked and the asset may be pulled into probate.
- Real property title issues: Real estate titled jointly with survivorship typically transfers outside probate, but the surviving owner should confirm title records and may need to record the death certificate and update the deed.
- Reporting to the court: Even when an asset is non‑probate, a personal representative sometimes lists non‑probate items on a separate schedule or disclosure to show the court, beneficiaries, or creditors what existed outside probate. This avoids confusion and can protect the personal representative from later claims.
Practical steps a personal representative or family member should take
- Gather documentation: get account titles, deeds, bank records, beneficiary designations, and copies of wills or trusts.
- Confirm title language: check whether accounts or property are explicitly titled with “right of survivorship,” as wording matters.
- Contact institutions: banks, brokerage firms, and title companies can tell you their process for transferring or retitling assets when a joint owner dies; they will require a death certificate and identification.
- Preserve records: keep evidence of who contributed funds to a joint account or purchased property so you can demonstrate intent if necessary.
- Consider listing non‑probate assets separately: when filing inventory of probate assets, attach a separate schedule or provide a statement listing major non‑probate assets and their disposition so the court record is clear.
- Consult a Montana attorney when in doubt: particularly if there are large assets, creditor claims, contested ownership, or suspected improper transfers.
Example (hypothetical)
Suppose your father had a bank account titled “Father and Mother, joint tenants with right of survivorship.” On your father’s death the account balance passed automatically to your mother. Because the account passed by right of survivorship, the balance ordinarily would not be listed on the probate inventory of your father’s estate. However, if your father had put most of the funds into the account shortly before he died and a creditor alleges the transfers were made to avoid collection, you should document contributions and talk to an attorney because the account could be subject to challenge.
Bottom line
Generally, assets that pass by right of survivorship to your mother are non‑probate and do not have to be included among the probate estate items listed in a Montana probate inventory. But you should still identify, document, and disclose such assets appropriately, and consult a Montana probate attorney if there is any question about ownership, creditor claims, or possible challenges.
Disclaimer
This information is educational only and does not constitute legal advice. I am not a lawyer. For advice tailored to your situation, consult a licensed Montana attorney.
Helpful Hints
- Don’t assume: verify account and deed wording — “joint tenants with right of survivorship” vs. “tenants in common” vs. “payable/transfer on death.”
- Get certified death certificates early; institutions will require them to transfer title.
- Keep records of who contributed money to joint accounts or property purchases.
- If you are the personal representative, consider providing a short schedule of non‑probate assets to the court to avoid later disputes.
- Reach out to banks and title companies to learn their exact transfer procedures and required documents.
- If creditors are involved or transfers look suspect, talk to an attorney before distributing funds to avoid personal liability.
- Use the Montana Legislature site to read the probate statutes in Title 72: https://leg.mt.gov/bills/mca/title_0720/.