Extension Office: Probate: What Does It Accomplish

WHEN A PERSON DIES, WITH OR WITHOUT A WILL, Montana law provides a legal process determining the market value of real and personal property and their distribution to appropriate parties. One procedure, termed probate, takes place in the district court of the Montana county where the deceased person lived.

The Montana Uniform Probate Code supplies a flexible and simplified approach to probate administration, according to Kaleena Miller, Madison-Jefferson County Extension Agent. During probate, a person’s will is verified before settling creditors’ claims. Then heirs receive property according to Montana law.

Probate is not necessary for any property the decedent held in trust or any property held in joint tenancy with right of survivorship with another person, property held in trust, life insurance payable to a named beneficiary, transfer-on-death deeds on real property, and payable on death beneficiaries on financial accounts among other examples.

If the deceased owned real property found in another state, an “ancillary administration” in that state may be necessary.

A personal representative, what used to be an executor, who is named in a will and appointed by a district judge, is responsible for settling an estate. The PR may be a family member, friend, attorney, corporate entity — a bank or trust company — or a combination of those. The personal representative transfers real estate and personal property to their new owners.

“If you do not name a PR in your will, or if you die without writing a will, the district judge will appoint one for you,” said Miller. “The Uniform Probate Code provides the order in which eligible persons may apply for appointment as a PR if the will does not specify one. In a marital situation, the surviving spouse has priority.”

MSU Extension family economics specialist Marsha Goetting added, “Because estates vary, the schedule to complete the probate process can also, For some, the process takes six months, but the formal procedure typically averages about 10 months or longer. If an estate does not close within two years from the appointment of the PR, a district court judge can order the PR to appear in court to explain why the probate has not been completed. The judge may order the estate closed within 30 days and declare no compensation for the attorney or PR.

Goetting and Miller said the cost of probate depends on the size and complexity of the estate. Currently, the state initial fee to begin probate is $100. Other costs may include copying fees, newspaper notifications, appraisals, and expenses for auctions or property sales. The major costs are the fees for the PR and attorney for their services.

Extension has made the MontGuides “What is a Personal Representative” and “Probate” available online at http://www.montana.edu/estateplanning/eppublications.html. For those who do not have computer access, copies are available from the Madison-Jefferson County Extension office at 287-3282.