Detailed Answer — Overview
If you are the sole heir under Montana intestacy law and someone else has letters of administration (the court-issued authority to manage the estate), you can ask the probate court to reconsider that appointment and ask the court to remove the current administrator so you can be appointed instead. Montana handles these matters in the probate code (Title 72 — Probate and Related Matters). See the Montana Code, Title 72: https://leg.mt.gov/bills/mca/title_72/.
Who can be appointed as personal representative in Montana?
When there is no valid will, the court normally follows the priority set by law to appoint a personal representative. As the sole heir, you generally have top priority to serve. If someone with lower priority was appointed, you can petition the court to replace them and explain why the court should give you the appointment instead.
Common legal grounds to ask the court to remove an administrator
- Failure to perform required duties (failing to gather assets, file inventories, or file accounts).
- Misconduct — theft, misuse, waste, or self-dealing with estate assets.
- Incapacity or inability to serve (serious illness, incarceration, or other disability that prevents the work).
- Conflict of interest that prevents impartial administration.
- Failure to post required bond or comply with court orders.
- Other statutory disqualifications or misconduct the court finds sufficient to remove the representative.
Step-by-step: How to seek reconsideration and removal
- Get the probate docket and existing letters of administration. Ask the probate clerk for the case file, the letters of administration document, any inventories, and accounting filings. Verify who was appointed, when, and the bond status.
- Confirm you are the only heir and collect proof. Gather documents that show your relationship to the decedent (birth certificate, marriage certificate, death certificate, family tree, or affidavits). If there is no will, collect proof supporting intestacy.
- Document problems with the current administrator. Collect evidence of missed duties, missing assets, suspicious transactions, lack of inventory, or other misconduct. Examples: bank records, canceled checks, emails, witness statements, or copies of filings that show noncompliance.
- File a petition with the probate court. The petition typically requests (a) revocation or termination of the administrator’s letters, (b) removal of the administrator for specified grounds, and (c) appointment of you as successor personal representative. The petition must describe facts and cite the legal reason for removal and your priority to appointment.
- Provide notice and serve interested persons. Montana probate rules require notice to the current administrator, heirs, creditors, and other interested parties. Follow the court’s rules for service and timing.
- Ask for interim relief if needed. If you fear asset dissipation, ask the court for a temporary restraining order, inventory and accounting, a freeze on certain accounts, or appointment of a temporary receiver while the court considers removal.
- Attend the hearing and present evidence. At the hearing, the judge will hear evidence from you and from the administrator. Courts generally decide removal by weighing whether the administrator has breached duties or is otherwise unfit. Be focused, factual, and bring witnesses or documentary proof.
- If the court removes the administrator, seek appointment. If removed, the court will decide who should serve next. As the sole heir you will normally be a preferred candidate, though the judge still evaluates fitness and any bond requirement before issuing new letters.
Key court actions and paperwork after removal
- The court may require an accounting by the removed administrator and may order restitution if assets were misapplied.
- The new personal representative generally must file an inventory and may need to post bond unless bond is waived by the court or other interested parties.
- The court may set conditions or supervise the new representative’s administration for a period.
Evidence standard and what to prove
The probate court weighs the evidence on the record. Removal usually requires proof by a preponderance of the evidence that the administrator breached duties, mismanaged assets, failed to perform required tasks, or is otherwise unfit. Showing you are the sole heir and able and willing to administer can persuade the court to appoint you.
Practical considerations: timing, cost, and risk
Filing a removal and appointment petition can take weeks to months and may involve court fees, service costs, and possibly attorney fees. If the administrator objects, expect contested hearings. Courts move faster when estate assets are at risk; request emergency relief if theft or dissipation is likely.
When to consult an attorney
Probate rules can be complex. If assets are significant, the administrator resists removal, or you need emergency relief (asset freeze, turnover, or criminal referral), consult a Montana probate attorney promptly. An attorney can prepare pleadings, handle service, gather evidence, and present evidence at hearings.
Statutory resource
Montana law governing probate and related matters appears in Title 72 of the Montana Code Annotated. For the statutory framework, see: Montana Code — Title 72 (Probate and Related Matters).
Disclaimer
This information is educational only and not legal advice. For advice specific to your situation, consult an attorney licensed in Montana.
Helpful Hints
- Obtain a certified copy of the decedent’s death certificate and the probate case file from the clerk.
- Collect clear documentary evidence of any missing or misused estate assets before filing your petition.
- Keep communications written when possible (emails, letters) and preserve originals of bank statements and checks.
- File for emergency relief (temporary restraining order or turnover) if you suspect imminent dissipation of assets.
- Ask the court clerk about local probate forms and filing requirements — county procedures can vary.
- Consider a limited consult with a probate attorney to review your petition before filing; many attorneys offer short, focused consultations.
- Be prepared to offer or obtain a bond if the court requires it when you seek appointment.
- If the administrator has committed theft, you may also contact law enforcement; civil removal and criminal prosecution are separate remedies.