Detailed Answer
This answer explains how wills and beneficiary designations work in Montana and how you can use them (and other tools) to keep assets out of probate so your spouse and children receive what you intend. This is general information only and is not legal advice.
How probate normally works in Montana
A will typically names who inherits your property and who will serve as personal representative (executor). When someone dies owning property in their own name, the will usually must be filed in district court for probate so the court can approve the will, appoint the personal representative, and supervise distribution. Montana’s statutes and court procedures govern this process; see general Montana probate law resources on the Montana Legislature site: https://leg.mt.gov/bills/mca/ and the Montana Courts’ probate self-help pages: https://courts.mt.gov/selfhelp/Probate.
Can a will alone avoid probate?
No. A will itself does not avoid probate. In Montana, a will controls who receives assets that pass through probate, but those assets generally must go through the probate process before distribution. If your goal is to avoid probate, you need additional planning tools beyond a will.
What avoids probate in Montana
Assets titled or structured to pass outside of probate will usually avoid the probate process. Common methods include:
- Beneficiary designations — Many assets allow you to name a payable-on-death (POD) or beneficiary (for example, life insurance, IRAs, 401(k)s, and some annuities). On your death, the named beneficiary receives the asset directly without probate, regardless of what your will says.
- Joint ownership with rights of survivorship — Property owned jointly with right of survivorship (for example bank accounts or real estate titled as joint tenants) passes directly to the surviving owner outside probate.
- Payable-on-death / transfer-on-death account designations — Many banks let you name POD beneficiaries for bank accounts. Some states also allow transfer-on-death (TOD) deeds for real property; check Montana law and county recording rules to see what is permitted and how to execute the deed properly.
- Living trusts (revocable trusts) — If you fund a revocable living trust during life and title assets in the trust name, those assets avoid probate and are distributed under the trust’s terms on death.
- Small estate procedures — Montana has simplified procedures for small estates in some circumstances that can avoid full probate for low-value estates or limited asset types. See Montana court rules and statutes for details.
How to coordinate wills and beneficiary designations so children and spouses inherit as intended
Follow these practical steps:
- Inventory your assets and note how each passes — For each account or piece of property, record whether it passes via will/probate, beneficiary designation, joint ownership, trust, or other means.
- Use beneficiary designations for payable-on-death assets — Make sure retirement plans, IRAs, life insurance, and bank accounts have current beneficiaries named. Beneficiary designations override wills for those assets, so keep them aligned with your estate plan.
- Consider a revocable living trust for assets you want out of probate — Fund the trust (re-title assets in the trust’s name). A trust controls distribution without probate but requires careful setup and asset retitling.
- Keep wills to control probate assets and name a guardian — Wills remain important for assets that must go through probate and for naming guardians for minor children and a personal representative to manage probate assets.
- Avoid conflicting instructions — Conflicts between a will and beneficiary designation often are resolved in favor of the beneficiary designation. Review and update all beneficiary designations after major life events (marriage, divorce, births, deaths).
- Plan for minor children — Don’t leave assets outright to minor children without a plan. Use a trust (either standalone or within a will) to provide for management of assets until a child reaches an age you choose.
Common pitfalls to avoid
- Failing to update beneficiary designations after divorce or remarriage.
- Assuming joint ownership always avoids problems — it may have tax, creditor, and control implications during life.
- Not retitling assets into a trust after creating the trust — an unfunded trust won’t avoid probate.
- Overlooking smaller assets (digital accounts, payable-on-death bank accounts) that can be transferred outside probate with proper designation.
When probate may still be needed
Even with good planning, probate may be necessary for:
- Assets held solely in your name without beneficiary designations or joint owners.
- Resolving creditor claims or disputes over asset distribution.
- Administering the estate when a decedent didn’t plan or when assets are unclear or contested.
For official Montana statute text related to probate and wills, see the Montana Code available through the Legislature: https://leg.mt.gov/bills/mca/. For practical probate forms and court guidance, see the Montana Courts’ self-help resources: https://courts.mt.gov/selfhelp/Probate.
Helpful Hints
- Make a complete list of assets and note how each transfers on death (will, beneficiary, joint ownership, trust).
- Review and update beneficiary designations and account titles after any major life event.
- If you have minor children, appoint a guardian in your will and consider a trust to manage inheritances for minors.
- Fund a living trust properly — re-title bank and investment accounts into the trust name.
- Talk to a Montana estate planning attorney to draft or review documents and to confirm whether Montana allows specific tools (for example, TOD deeds in your county) and how to use them correctly.
- Keep important documents accessible to your personal representative or trustee: copies of wills, trust documents, beneficiary designation forms, and a list of account credentials.
- Remember that beneficiary designations generally override wills — check them first when aligning your plan.
Disclaimer: This is general information about Montana law and is not legal advice. For advice tailored to your situation, consult a licensed Montana attorney who practices in estate planning and probate.