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Disclaimer: This article is for educational purposes and does not constitute legal advice.

Detailed Answer

1. Understanding Intestacy Under Montana Law

When someone dies without a valid will in Montana, their estate passes by intestate succession. Montana’s intestacy rules appear in Title 72, Chapter 2, Part 1 of the Montana Code Annotated (MCA). These rules fill gaps in estate distribution and determine which relatives inherit.

2. Order of Succession

Mont. Code Ann. § 72-2-104 MCA (§ 72-2-104) sets the inheritance order:

1. Surviving spouse and children or other issue.
2. Surviving spouse alone.
3. Children or other issue alone.
4. Parents of the decedent.
5. Siblings of the decedent.
6. Grandparents or their issue.
7. Nearest kindred (closest blood relatives).
8. The State of Montana (if no heirs).

3. Spouse and Issue Shares

If the decedent leaves a surviving spouse and issue, the spouse’s share depends on whether all issue are also the spouse’s issue. Under Mont. Code Ann. § 72-2-105 MCA (§ 72-2-105):

• If all children are common to the spouse and decedent, the spouse receives the entire estate.
• If some children are not common, the spouse takes the first $150,000 plus one-half of the remaining personal property, and one-half of the real property.

4. Representation: Per Capita vs. Per Stirpes

Descendants inherit by representation. Under Mont. Code Ann. § 72-2-106 MCA (§ 72-2-106), this means that if a child predeceases the decedent, that child’s share passes to his or her own descendants.

5. Hypothetical Example

Suppose Jane Smith dies in Montana without a valid will. She is survived by her spouse and two children, one from a prior relationship. Her estate is worth $300,000, all personal property. Under § 72-2-105 MCA, the spouse receives the first $150,000 plus one-half of the remaining $150,000 (i.e., $75,000), for a total of $225,000. The two children split the remaining $75,000 equally.

6. Opening and Closing the Estate

A personal representative (formerly called an executor) petitions the district court in the county where the decedent lived. See Mont. Code Ann. § 72-1-202 MCA (§ 72-1-202). Duties include:

• Inventorying assets and paying debts.
• Providing notice to heirs and creditors.
• Distributing the estate according to intestate shares.

Helpful Hints

• Obtain multiple certified copies of the death certificate promptly.
• Identify all assets (bank accounts, real estate, personal property).
• Search for potential heirs through family records.
• File the probate petition in the appropriate Montana district court.
• Consult a probate attorney to ensure compliance with Montana statutes.
• Keep detailed records of all notices, payments and distributions.
• Close the estate only after all debts and taxes are settled.