Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
In Montana probate proceedings, you may seek a court-ordered subpoena to obtain estate records from third parties or custodians of records. The Montana Rules of Civil Procedure, Rule 45, governs subpoenas duces tecum (MCA 25-13-401 to 25-13-412). The Montana Uniform Probate Code also authorizes the court to compel witness attendance and document production (MCA 72-3-101 et seq.).
Step 1: Identify the Records You Need
List specific documents (e.g., bank statements, property deeds, insurance policies). Be precise. Courts and custodians respond faster to narrowly tailored requests.
Step 2: Prepare the Subpoena Duces Tecum
Use the court’s prescribed form or draft a document that:
- Names the court and case (estate name and probate case number).
- Lists the custodian and their address.
- Describes documents to produce.
- States date, time and location for production or deposition.
- Includes witness fees and mileage as required by Rule 45(b)(1).
Step 3: File and Serve Your Subpoena
File the subpoena with the probate clerk or district court clerk. Serve it on the custodian at least 14 days before the return date. Include a copy of the filing stamp and proof of service.
Step 4: Handle Objections and Enforcement
If the custodian objects or fails to comply, file a motion to compel under Rule 45(c)(2). Attend the hearing. The court may order production and assess sanctions for non-compliance.
Step 5: Use the Records at Probate Hearing
Introduce the obtained records as evidence in filings or hearings. Provide certified copies when necessary. Follow Mont. R. Evid. for authentication.
Helpful Hints
- Confirm local court rules—some courts impose additional requirements.
- Serve subpoenas with a process server to ensure valid service.
- Keep copies of all submissions and proof of service.
- Allow extra time for out-of-state or busy custodians.
- Consult with a probate attorney if disputes arise or records are complex.