Disclaimer: This article provides general information on Montana probate and does not constitute legal advice. Consult a licensed attorney for guidance on your specific situation.
Detailed Answer
In Montana, a testator’s will can enter probate either in common form or solemn form. Both paths admit a will to probate, but they differ in procedure, timing, and finality.
1. Common Form Probate
- Proof by Affidavit: The will proponent files the original will with the clerk of district court, together with an affidavit from a witness or the custodian swearing to its authenticity. (Mont. Code Ann. § 72-3-201) § 72-3-201.
- No Formal Hearing: The court clerk admits the will based solely on the affidavit and will copy. You avoid in-court testimony and scheduling delays.
- Probate Becomes Effective Immediately: Once the clerk admits the will, letters testamentary issue quickly, and the personal representative can begin administering the estate.
- Opportunity to Contest: Interested parties have four months from the date of admission to file a caveat (objection). If no caveat appears, the probate in common form becomes final by operation of law.
2. Solemn Form Probate
- In-Court Hearing: The proponent must present live testimony from at least one attesting witness under oath. The court schedules a hearing where the witness confirms the will’s execution.
- Conclusive Proof: After hearing, the judge enters an order admitting the will. That order carries a presumption of validity and cannot be challenged on formal grounds later. (Mont. Code Ann. § 72-3-202) § 72-3-202.
- No Further Contests: Once the judge admits a will in solemn form, it enjoys finality. Potential objectors lose the right to raise formal defects or witness competency issues.
- Longer Timeline: Scheduling a hearing, serving notice, and gathering witnesses can extend the process compared to common form probate.
3. Key Differences at a Glance
| Feature | Common Form | Solemn Form |
|---|---|---|
| Proof Method | Affidavit | Live witness testimony |
| Hearing Required | No | Yes |
| Finality | Final after 4-month caveat period | Immediate and conclusive |
| Timeframe | Faster | Longer |
Helpful Hints
- Review Mont. Code Ann. §§ 72-3-201 and 72-3-202 to understand filing requirements.
- Choose common form if you expect no objections and want speed.
- Opt for solemn form if you face or wish to preempt formal challenges.
- Notify heirs and creditors promptly to avoid delays or surprises.
- Keep the original will in a safe, accessible location for probate filing.
- Consult a probate attorney to decide which method fits your estate plan.