Montana Small Estate Affidavit: The $100,000 Threshold Explained

Montana's Small Estate Affidavit — formally called the Affidavit for Collection of Personal Property — allows successors to collect a deceased person's assets without opening a probate case, as long as the qualifying estate is worth $100,000 or less. The threshold was raised from $50,000 to $100,000 in 2023. If you are working from an article or resource that still says $50,000, it is out of date. This article explains exactly who qualifies, how to use the affidavit, and where the process breaks down.

What the Small Estate Affidavit Actually Does

The affidavit is a sworn legal statement that you present directly to a bank, financial institution, vehicle title office, or any other entity holding the decedent's property. Under MCA § 72-3-1101, the institution receiving the affidavit is legally required to release the assets to you. No court filing. No Letters Testamentary. No judge's involvement.

This process entirely bypasses the District Court system. It requires:

• A 30-day waiting period from the date of death
• A notarized affidavit stating that you are entitled to the property and that the total estate value does not exceed $100,000
• A certified copy of the death certificate

That is the complete process for qualifying estates.

Who Qualifies

The $100,000 limit applies to the total value of the probate estate — not the total value of all the decedent's assets. This distinction matters significantly.

Assets excluded from the calculation (and from probate entirely):

• Life insurance policies with named beneficiaries
• Retirement accounts (IRA, 401(k), pension) with named beneficiaries
• Bank accounts designated as Payable on Death (POD)
• Joint bank accounts with right of survivorship
• Real property held in joint tenancy with right of survivorship
• Real property protected by a Montana Transfer on Death (TOD) deed
• Vehicles with a Transfer on Death beneficiary designation (Form MV13)

Only assets titled solely in the decedent's name, without a beneficiary designation or survivorship clause, count toward the $100,000 threshold.

Example: A decedent had a checking account worth $80,000 with no beneficiary designation, a savings account worth $40,000 named POD to a child, and a jointly owned home. The probate estate is only $80,000 — the savings account passes directly to the named child, and the home passes to the joint tenant. The $80,000 checking account qualifies for the Small Estate Affidavit.

Example: A decedent had a $120,000 checking account in their name alone and no other probate assets. This estate exceeds $100,000 and must go through informal or formal probate. The affidavit is not available.

The 30-Day Waiting Period

You cannot use the Small Estate Affidavit until 30 days have passed since the date of death (MCA § 72-3-1101). This is a mandatory statutory period that cannot be waived. Banks and financial institutions are permitted to refuse the affidavit if presented before the 30 days have elapsed.

There is no shortcut for the waiting period. Use the 30 days to gather documentation: certified death certificates, account statements, vehicle titles, and any documents establishing your relationship to the decedent as a successor.

Who Can File the Affidavit

Any "person claiming to be the successor of the decedent" can present the affidavit. Under the Montana Uniform Probate Code, successors include beneficiaries named in a will and, if there is no will, heirs under Montana's intestate succession laws (typically spouse, children, or other close relatives in priority order).

The affidavit must state that:

• The presenting person is the successor to the claimed property
• No other person has a higher right to the property
• The total value of all property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed $100,000
• At least 30 days have elapsed since the date of death

The affidavit must be notarized.

Where to Obtain the Affidavit Form

The Montana Judicial Branch (courts.mt.gov) provides general affidavit forms. Some County Clerk of District Court offices, such as Gallatin County, provide standardized templates for a nominal fee. However, court clerks are legally prohibited from advising you on how to fill out the form or whether your estate qualifies.

The Montana State Law Library (Helena) has research resources available to help self-represented individuals prepare their own documents.

What the Small Estate Affidavit Cannot Do

This is where many families run into problems:

Cannot transfer real estate. The Small Estate Affidavit applies only to personal property — bank accounts, investment accounts, vehicles, and tangible personal items. Real property (a house, land, or other real estate) that is solely titled in the decedent's name cannot be transferred via the affidavit. Even if the entire estate is worth less than $100,000, real property must go through probate or a separate TOD deed process.

Cannot be used for contested estates. If there are multiple claimants to the same assets, or if family members dispute who is the rightful successor, the affidavit process does not resolve the dispute. You would need to go through formal probate with court involvement.

Does not protect against Medicaid recovery. If the decedent was a Montana Medicaid recipient who received long-term care after age 55, the Montana Department of Public Health and Human Services (DPHHS) may seek recovery from the estate, including from assets received via the Small Estate Affidavit. The 2025 Montana Supreme Court ruling in DPHHS v. Johnson makes clear that DPHHS can pursue heirs directly even after assets have been distributed — whether through probate or through the affidavit process. Verify Medicaid exposure before using the affidavit.

Does not eliminate creditor obligations. Even though you bypass court, any legitimate debts of the decedent remain obligations of the estate. Successors who claim assets via the affidavit and then encounter creditor claims against the estate may face personal liability up to the value of assets received (MCA § 72-6-112 applies a parallel concept to non-probate transfers).

Vehicles: A Specific Process

For transferring a vehicle title after a death, the Montana Motor Vehicle Division uses a distinct form: Form MV12 (Application for Title by Non-Probate Transfer). This can be used even without the broader Small Estate Affidavit process if the estate qualifies under the $100,000 threshold. You present Form MV12, the certified death certificate, and the original title to the County Treasurer's office. The title transfer fee is $12.36 for light vehicles.

Montana also allows proactive Transfer on Death registration for vehicles — the decedent could have named a beneficiary directly on the vehicle title using Form MV13, which would have made the title transfer automatic upon death without any affidavit.

When the $100,000 Threshold Creates a Borderline Case

If the estate is right at the threshold — say, $95,000 in a bank account plus $30,000 in personal property — you need to be precise about what counts:

• Valuations are based on fair market value as of the date of death, minus any liens or encumbrances
• Assets must be the decedent's probate assets — not joint assets, not beneficiary-designated assets
• The statute says "wherever located" — include all probate personal property, not just Montana assets

If there is any ambiguity about whether the estate qualifies, the conservative approach is to open informal probate rather than risk presenting an affidavit that misrepresents the estate's value. A false or materially incorrect affidavit carries legal liability.

What Happens If the Affidavit Is Wrong

If a successor uses the Small Estate Affidavit to claim property and later it is determined that the estate exceeded $100,000, or that another person had a superior right to the property, the successor may be liable to return the property or its value to the rightful claimant or the estate. Under MCA § 72-3-1102, a person who in good faith presents the affidavit to a holder of property has no further liability, but the successor who presented the affidavit may be required to account for the assets received.

Who This Is For

• Surviving spouses or adult children trying to access a deceased parent's or spouse's bank accounts without going to court
• Heirs of estates consisting primarily of financial accounts, personal property, and vehicles, where the total probate value is under $100,000
• Anyone confused by the $50,000 vs. $100,000 discrepancy they have seen in online resources
• Families who want to resolve the estate quickly without the 9–18 month timeline of formal or informal probate

Who This Is NOT For

• Anyone whose probate estate exceeds $100,000
• Anyone with real estate solely titled in the decedent's name (the affidavit cannot transfer it)
• Estates where the decedent was a significant Medicaid recipient — the affidavit does not protect distributed assets from DPHHS recovery
• Any situation with disputed successors or competing claims

Tradeoffs

Using the affidavit: Fastest and cheapest resolution — potentially done in 30 days with minimal cost. Requires accurate assessment of which assets count toward the $100,000 threshold. Does not protect against Medicaid recovery. Insufficient for real estate.

Going through informal probate instead: Takes longer (minimum 6 months) and costs more ($100 filing fee plus other costs), but provides more legal structure, a formal creditor notification process, and a cleaner close. More appropriate if there is any Medicaid exposure or if the estate includes assets requiring careful creditor management.

FAQ

Did Montana change its small estate limit recently? Yes. The Montana Legislature raised the threshold from $50,000 to $100,000 effective in 2023 (Senate Bill 286, amending MCA § 72-3-1101). Many online resources still cite $50,000. The current limit is $100,000.

Does the $100,000 limit include the house? The $100,000 limit applies to the probate estate — assets titled solely in the decedent's name without survivorship rights or beneficiary designations. Real property in joint tenancy or with a TOD deed is excluded from the calculation. Real property solely in the decedent's name cannot be transferred via the affidavit at all — it must go through probate.

Can the Small Estate Affidavit be used if there is a will? Yes. The existence of a will does not disqualify the estate from using the affidavit if the estate meets the $100,000 threshold. The will identifies who the successors are, which helps establish the affiant's right to claim the property.

What if multiple people are entitled to the assets? If multiple people are successors (for example, three adult children as equal heirs), they can either agree on one person to present the affidavit on behalf of all of them, or they can each present separate affidavits for their respective shares. The situation is more complicated when there is disagreement — contested succession is not appropriate for the affidavit process.

Do I need an attorney to use the Small Estate Affidavit? No. The affidavit process is specifically designed for self-administration without court or attorney involvement. The main risk is misidentifying which assets count toward the $100,000 threshold, which a good guide or checklist can help prevent.

The Montana Probate Process Guide includes the Probate-or-Skip Decision Tree — a diagnostic flowchart that walks through every asset in the estate to determine whether you qualify for the $100,000 Small Estate Affidavit or whether full probate is required, with clear explanations of which assets count and which are excluded from the calculation.

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