Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to address your specific situation.
Detailed Answer
Discovering an original will decades after execution raises unique challenges. Under Montana law, you must verify its authenticity, satisfy procedural requirements, and convince a court to admit it to probate.
1. Authenticate the Will
Montana Code Annotated § 72-2-502 requires a will to be in writing, signed by the testator, and witnessed by two individuals. Examine the document for:
- The testator’s signature and date.
- Signatures of two attesting witnesses.
- Notarial acknowledgement, if any.
If witnesses are unavailable, Montana allows proof by affidavit or clear and convincing secondary evidence. See MCA § 72-2-512 (proof of lost or unlocatable will).
2. File a Probate Petition
File a petition in the District Court of the county where the decedent resided at death. Under MCA § 72-3-201, any interested person may open probate by:
- Submitting the original will and a certified death certificate.
- Completing the court’s probate petition forms.
- Paying required filing fees.
3. Provide Notice to Heirs and Creditors
The court will issue notices to known heirs, beneficiaries, and creditors. Montana law mandates published notice in a local newspaper and direct mail to interested parties. This ensures potential claimants have an opportunity to object.
4. Attend the Probate Hearing
The court schedules a hearing to examine evidence of proper execution and any objections. Bring witness affidavits or other proof if original attesting witnesses are deceased or unavailable.
5. Admit the Will and Appoint a Personal Representative
If the court is satisfied, it will enter an order admitting the will to probate and appointing a personal representative. That fiduciary then inventories assets, notifies additional creditors, and administers the estate under court supervision.
6. Address Delay-Related Issues
Decades-long delays can complicate matters:
- Witnesses may have died—rely on depositions or contemporaneous statements.
- Records or assets may be dispersed—trace former custodians or contact financial institutions.
- Creditors’ claims periods may have expired, but heirs could object to distribution under intestacy rules.
Helpful Hints
- Photograph and securely store the will to prevent further damage.
- Collect any correspondence or earlier drafts that confirm the testator’s intent.
- Locate and interview any original witnesses or their close family members.
- Research past estate filings—an old administration may already exist.
- Keep a detailed chain-of-custody log for the document.
- Consult a probate attorney promptly to navigate court procedures.