Montana Probate Checklist: Affidavit, Intestate Rules, and What to Do First

The hardest part of settling a Montana estate isn't any single form or filing — it's not knowing the right order. The Montana Uniform Probate Code gives you the legal framework; it doesn't give you a project timeline. Clerks at District Courts in Gallatin, Yellowstone, or Lewis and Clark counties will confirm they cannot tell you what to do next — they're legally prohibited from dispensing legal advice.

This checklist fills that gap. Start here, whether you're looking at a simple affidavit situation or full informal probate.

Step 1: Determine Whether Probate Is Even Required

Before filing anything, categorize the deceased's assets. Montana law draws a sharp line between probate and non-probate assets, and only probate assets go through the court system.

Non-probate assets — no court involvement needed:

• Bank accounts with a Payable on Death (POD) beneficiary
• Retirement accounts (401k, IRA) with named beneficiaries
• Life insurance policies with named beneficiaries
• Real estate held in joint tenancy with right of survivorship
• Real estate covered by a Montana Transfer on Death (TOD) deed
• Vehicles jointly titled (Montana presumes survivorship regardless of whether the title says "and" or "or")

These assets transfer directly to the surviving owner or beneficiary by presenting a death certificate and, in the case of vehicles, Form MV12 (Application for Title by Non-Probate Transfer) to the County Treasurer.

Probate assets are everything titled solely in the deceased's name without a survivorship or beneficiary designation. Add up the fair market value of these assets as of the date of death, minus any liens or encumbrances. That number determines which track you take.

Step 2: Choose the Right Administrative Track

Track A: Small Estate Affidavit (Under $100,000 in Probate Assets)

If the total probate estate — excluding non-probate assets and net of liens — does not exceed $100,000, you can bypass the District Court entirely. This threshold was updated from $50,000 to $100,000 in 2023 under Senate Bill 286 (MCA § 72-3-1101). Many older websites still cite the old limit, so if your estate falls between $50,000 and $100,000, you likely qualify for this simplified process.

What the affidavit covers: Personal property and financial accounts. It cannot be used to transfer real estate.

How to use it:

1. Wait 30 days from the date of death — the statute requires this waiting period, no exceptions.
2. Prepare a notarized affidavit stating that you are entitled to the property as a successor, that the 30-day period has elapsed, that the estate's total value is $100,000 or less, and that no probate proceeding is pending or has been commenced.
3. Present the affidavit along with a certified death certificate directly to the financial institution, brokerage, or other holder. They are legally required to release the assets to you.

Some county clerks (including Gallatin County) provide template affidavits for a nominal fee. Montana's State Law Library also maintains resources for pro se filers.

Track B: Informal Probate (Over $100,000 or Estate Includes Real Estate)

If the estate exceeds the affidavit threshold, or includes real property without a TOD deed or joint tenancy, you'll need to open an informal probate case with the District Court in the county where the decedent was domiciled.

Step 3: Montana Intestate Laws — Who Inherits Without a Will

If the decedent died without a valid will, MCA §§ 72-2-112 through 72-2-116 determine distribution automatically. The key rules:

• Surviving spouse (no prior-relationship children): Inherits everything.
• Surviving spouse (decedent has children from prior relationship): First $225,000 plus half the balance; remainder to decedent's descendants.
• No surviving spouse: Everything to descendants (children first, then grandchildren by representation).
• No descendants: To parents, then siblings, then grandparents and their descendants.
• No relatives at all: Estate escheats to the State of Montana.

Important: intestate rules only govern probate assets. Any account or property with a named beneficiary or survivorship designation passes directly to that person — the intestate statute doesn't override it.

Step 4: Informal Probate — The Full Timeline

Once you determine you need informal probate, the process moves through defined phases with statutory deadlines you must hit without anyone prompting you.

Phase 1: File the Application (Week 1-2)

File an "Application for Informal Probate and Appointment of Personal Representative" with the Clerk of the District Court. The filing fee is $100, standard across all Montana District Courts.

The application cannot be filed sooner than 120 hours (5 days) after the date of death.

If there's a will, you present the original. If intestate, you present documentation of your relationship to the decedent. The clerk issues Letters Testamentary (with will) or Letters of Administration (without will), which are your official authorization to act on behalf of the estate.

Request at least 6-10 certified copies of the death certificate before filing — you'll need them for every institution, and ordering them piecemeal later is far more time-consuming. DPHHS charges $16 per certified copy.

Phase 2: Notify Heirs and Creditors (Within 30 Days of Appointment)

Within 30 days of your appointment, send formal written notice to all heirs and devisees (anyone named in the will or entitled by intestate succession).

Simultaneously, begin the creditor notification process:

• Publish a "Notice to Creditors" in a newspaper of general circulation in the county where probate is filed. This must run once per week for three consecutive weeks.
• Before the third publication, send direct actual notice — certified mail or equivalent — to all known or reasonably ascertainable creditors.
• After publication, obtain an affidavit of publication from the newspaper and file it with the clerk.

The first publication date triggers a 4-month creditor claim window. Creditors who do not file claims within this period are permanently barred from making claims against the estate. File this affidavit promptly.

Phase 3: Inventory the Estate (Within 9 Months of Appointment)

Prepare a comprehensive inventory of all probate assets, listing each item with a description and its fair market value as of the date of death. Real estate, vehicles, business interests, or antiques may require professional appraisers.

Before creditors can be paid from the general estate, you must first set aside the statutory allowances for a surviving spouse or dependent children:

• Homestead Allowance: $22,500 (MCA § 72-2-412)
• Exempt Property: Up to $15,000 in household furnishings, vehicles, and personal effects (MCA § 72-2-413)
• Family Allowance: Up to $27,000 lump sum, or $2,250/month for up to one year, for maintenance during administration (MCA § 72-2-414)

These allowances are paid before general creditors. The surviving spouse is also entitled to claim an elective share equal to 50% of the marital-property portion of the augmented estate, with a supplemental minimum floor of $75,000 (MCA § 72-2-232).

Phase 4: Pay Creditors (After the 4-Month Window Closes)

Review all claims filed during the four-month window. Pay valid claims in statutory priority order:

1. Administration costs (filing fees, personal representative compensation, attorney fees if any)
2. Funeral expenses
3. Federal and Montana taxes
4. Medicaid estate recovery claims (DPHHS)
5. General unsecured creditors

Critical warning on Medicaid recovery: A 2025 Montana Supreme Court ruling (DPHHS v. Johnson, 2025 MT 276) established that if the decedent received Medicaid long-term care benefits, DPHHS can sue heirs directly even after the probate estate has been closed and the creditor window has expired. Do not distribute assets before verifying the DPHHS claim status if the decedent received any Medicaid benefits after age 55.

Phase 5: Close the Estate (No Earlier Than 6 Months After Appointment)

Montana law prohibits closing an estate until at least 6 months after the personal representative's appointment (MCA § 72-3-1004). This runs independently of the 4-month creditor window.

To close an informal probate, file a "Verified Statement to Close Estate" with the clerk. This sworn statement must confirm that:

• The 6-month period has elapsed
• The creditor claim period has expired and all valid claims have been paid
• All assets have been distributed to the appropriate parties
• You have provided a written accounting of the administration to all distributees

Once filed, your appointment as personal representative terminates after one year, and you are discharged from further liability for the administration — unless a proceeding is filed against you within that year.

Three Mistakes That Create Personal Liability

Distributing assets before the windows close. Both the 4-month creditor period and the 6-month minimum administration period are hard statutory stops. Distributing early can make you personally liable for claims filed afterward — including Medicaid recovery actions.

Skipping the Medicaid check. The 2025 Johnson ruling means DPHHS can sue heirs directly even after probate closes. Verify the decedent's Medicaid status with DPHHS before distributing a single asset if they received long-term care benefits after age 55.

Using the affidavit for real estate. The small estate affidavit covers personal property and financial accounts only. Real property without a TOD deed or joint tenancy arrangement must go through formal or informal probate — there is no shortcut.

The Montana Probate Process Guide covers each phase in sequential order with the statutory deadlines, creditor notice templates, inventory guidelines, and the closing statement — the step-by-step instructions the court clerks are legally prohibited from providing.

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