Probate in Montana: small estates, no will, and skipping court

Updated 2026-10-18

The short answer

In Montana, family can collect a small estate by affidavit 30 days after death if the probate estate, less liens, is $100,000 or less. Larger estates usually use informal probate through the clerk of court. A transfer on death deed passes a home without court, and Montana has no estate or inheritance tax.

When someone dies in Montana, the family's first question is usually practical. Do we have to go to court, and how long will it take?

Often the answer is no, or not for long. Montana has a small estate affidavit, a simple informal probate, and a deed that passes a house without court at all. This page covers each one, plus who inherits if there is no will. It is part of our estate planning guides by state. If the word is new, start with what probate is.

Can my family use a small estate affidavit in Montana?

Yes, if the estate fits. Thirty days after death, the person entitled to the property can collect it with a sworn affidavit, without opening probate (MCA 72-3-1101).

The conditions:

The probate estate, wherever located, less liens and encumbrances, is $100,000 or less.
At least 30 days have passed since the death.
Nobody has applied to be personal representative, anywhere.
The person signing is entitled to the property.

It covers money in the bank, belongings, stocks and similar personal property. Transfer agents must re-register securities when shown the affidavit, and a bank that pays on it is protected (MCA 72-3-1102).

The limit counts the whole probate estate, not just the bank accounts. The affidavit doesn't transfer real estate.

The limit was raised to $100,000 in 2023. Older articles online show a lower figure.

There is also a summary process. If the inventory shows the estate is no larger than the family allowances, funeral costs, last-illness medical bills and administration costs, the personal representative can distribute right away without notifying creditors (MCA 72-3-1103).

Who inherits if there's no will?

Montana's intestacy law decides, with its own dollar amounts (MCA 72-2-112).

Your family when you die	What your spouse receives
No children or other descendants, and no parent	Everything
All your children are also your spouse's, and your spouse has no other children	Everything
No descendants, but a parent survives	The first $300,000 plus three-fourths of the rest
All your children are your spouse's, but your spouse has children from another relationship	The first $225,000 plus half of the rest
You have a child who isn't your spouse's	The first $150,000 plus half of the rest

Anything that doesn't go to a spouse passes in this order (MCA 72-2-113):

Your descendants, by representation.
Your parents equally, or the surviving parent.
Your parents' descendants: brothers, sisters, nieces and nephews.
Half to your father's side and half to your mother's side: grandparents or their descendants.
The closest relative by degree of kinship.

An heir must outlive you by 120 hours. If nobody qualifies, the State of Montana takes it.

Friends never appear on this list. If you want a friend, a charity or the neighbor who walks your dog to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.

Who serves as personal representative?

Montana calls the executor a "personal representative." If more than one person wants the job, the law sets the order (MCA 72-3-502):

The person named in the will.
A surviving spouse who inherits under the will.
The custodial parent of a minor who died.
Other people who inherit under the will.
The surviving spouse.
The parent of an adult whose surviving children are all minors.
Other heirs.
The public administrator.
Any creditor, 45 days after death.

A personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.

Montana doesn't require the personal representative to live in the state. The only disqualifications are being under 18 or being found unsuitable by the court in formal proceedings (MCA 72-3-501). A niece in Oregon or a son in Texas can serve.

In informal probate, no bond is needed unless the will requires one or an interested person asks for it.

Informal or formal probate: which one?

Montana gives families three paths (MCA Title 72, Chapter 3):

Informal probate. A verified application to the clerk of court, with no hearing (MCA 72-3-201). Notice goes only to people who asked for it.
Formal probate. Before a judge, used when there is a dispute or a question about the will.
Supervised administration. The court oversees the whole estate. It is an option, not the default.

Our post on the probate process walks through the steps, and how long probate takes covers timing.

How long do creditors have?

The personal representative publishes a notice once a week for three weeks. Creditors then have four months after the first publication to come forward (MCA 72-3-801).

A creditor who gets a mailed notice has the later of those four months or 30 days after the mailing. Debts from before death are barred in any case one year after death, if never presented (MCA 72-3-803).

How much is the personal representative paid?

Montana says "reasonable compensation," with no percentage schedule in the current statute (MCA 72-3-631).

A personal representative may turn down a fee set in the will and take reasonable pay instead. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer on death deed. Montana allows one under its Uniform Real Property Transfer on Death Act (MCA 72-6-404).

What to know:

It must meet the rules for a recordable deed and say the transfer happens at your death.
It must be recorded with the county clerk and recorder before your death (MCA 72-6-408).
Montana provides optional forms for the deed and for revoking it (MCA Title 72, Chapter 6, Part 4).
A beneficiary deed recorded before October 1, 2019 that met the law then is treated as a transfer on death deed (MCA 72-6-417).

A living trust is the other common way to keep a home out of court. A trustee then hands it on by the trust's terms. Our post on how to avoid probate compares the options.

Will my heirs owe Montana estate or inheritance tax?

No. Montana repealed its inheritance tax for deaths after January 1, 2001, and has no estate tax for deaths after 2004. An estate may still need to file a Montana fiduciary income tax return (Montana Department of Revenue).

Which path fits your family?

Situation	Likely path
Probate estate of $100,000 or less, no house in the estate	Small estate affidavit after 30 days
Home with a recorded transfer on death deed	Passes to the named beneficiary, no probate
Assets held in a living trust	Successor trustee handles it, no probate
Larger estate, family in agreement	Informal probate through the clerk of court
Dispute over the will or who serves	Formal probate before a judge

Here is a typical case, a composite. Dorothy, 76, lived in Great Falls. Her house had a recorded transfer on death deed naming her nephew, and her accounts came to about $60,000. Thirty days after she died, he used the affidavit for the accounts. There was no court case.

Some people would rather not leave this to a nephew three states away. Trella Trust Company, through a Kinly membership, can be named as executor or trustee, first or as backup to someone you choose. If it steps in and settles the estate, that work is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our Montana financial power of attorney guide and Montana medical power of attorney guide.

Common questions

What is the small estate limit in Montana?

$100,000. The probate estate, wherever located, less liens and encumbrances, must be $100,000 or less, and the family must wait 30 days after death to use the affidavit.

Does a surviving spouse inherit everything in Montana?

Only in some cases. With no will, the spouse takes everything if there are no descendants and no parent, or if all the children are shared and the spouse has no other children. Otherwise the spouse takes a set dollar amount plus a share of the rest.

Can someone who lives in another state be a personal representative in Montana?

Yes. Montana's statute has no residency requirement. A personal representative must be at least 18 and not found unsuitable by the court.

Does Montana have an inheritance tax?

No. Montana's inheritance tax does not apply to deaths after January 1, 2001, and there is no estate tax for deaths after 2004.

How long do creditors have in Montana probate?

Four months after the first published notice. A creditor sent a written notice has the later of four months or 30 days after the mailing, and older debts are barred one year after death.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

Keep reading

State guidesPower of attorney in Montana: the rules, signing and who to namePower of attorney in Montana is durable by default, and a notarized one must be accepted by banks. Here's how to sign it, what it covers and who to name.State guidesMedical power of attorney in Montana: how it works, how to signMedical power of attorney in Montana: the durability wording it needs, how the living will is signed, and who decides for you if nobody is named in writing.State guidesEstate planning by state: guides for all 50 statesEstate planning by state: what stays the same everywhere, what changes, and power of attorney, medical and probate guides for all 50 states.