Probate

We offer probate services. Probate is a court proceeding to distribute a decedent’s probate assets to the proper recipients and if necessary to determine the validity of the decedent’s last will and testament. We usually serve in the capacity of the attorney for the Personal Representative, and in that capacity prepare the papers necessary to open the probate, publish notice to creditors, provide notice to the heirs and devisees, prepare any necessary estate tax and income tax returns, and assist with an accounting for the estate. We also can act as the personal representative of the estate.

Some Questions About Probate

A probate is a court proceeding designed to assure that a decedent’s assets pass to the proper persons.  In a standard probate, if there is a Will, it is presented to the clerk of court usually by the person named in the Will to serve as Personal Representative (Executor).  If there is no Will, the probate code sets forth a priority for being appointed as a Personal Representative.   The clerk of court then issues an order appointing the Personal Representative and issues Letters which show that the Personal Representative has been appointed and has authority to act on behalf of  the estate.  The Personal Representative will then proceed to take control of the decedent’s assets, prepare an inventory, give notice to persons with an interest in the estate that the probate has been opened, publish notice to creditors, pay outstanding bills, file any required income tax return, prepare and file an estate tax return if necessary, provide an accounting for the administration of the estate and finally make distribution of the estate.  When the Will is presented to the court, it is offered as the Will of the decedent.  It may be challenged as invalid for one reason or another, although this is rare.  Probates in Montana may be formal or informal, the latter being done almost entirely through the Clerk of Court without the necessity of appearing in front of a judge.

Only your probate assets. Assets that are held in joint tenancy or that are the subject of a beneficiary designation or that pass pursuant to the provisions of a trust are not controlled by your Will.

In simple terms, probate assets pass through the hands of the Personal Representative (Executor) while nonprobate assets pass directly to the beneficiary. Life insurance is an example of a nonprobate asset. Upon your death, the insurance company pays your beneficiary directly. The same item can be a probate asset in one instance and nonprobate in another. Take a house owned in joint tenancy by a husband and wife. They are considered to own the house one-half each. When one dies, title to the house is vested entirely in the survivor, who is now the sole owner. That happens without requiring a probate, so it is a nonprobate asset. Now when the survivor dies, there is no joint tenant, so the house will be a probate asset. The Personal Representative of the survivor’s estate will distribute the residence.

Life insurance has already been mentioned, as has property held in joint tenancy. Bank accounts may be owned in joint tenancy (although this often is not preferable) and may also have a beneficiary designation, and so may brokerage accounts. Beginning in 2007, real estate in Montana can have a beneficiary designation, and of course can be titled in joint tenancy. Retirement plans have beneficiary designations.  Any of these assets, when they are held in joint tenancy or when they are the subject of a beneficiary designation, are nonprobate assets.  Another means of passing assets outside of probate is through the use of trusts.  Those assets pass pursuant to the terms of the trust, not the Will, so they are also nonprobate assets.

The term estate is the source of a great deal of confusion. If a probate is opened, the probate estate consists of all the assets that the Personal Representative controls and can distribute. The Personal Representative, however, has no control over nonprobate assets. On the other hand, the federal estate tax applies to your taxable estate which includes all your assets, both probate and nonprobate assets.

Probate Links