What Happens if I Die Without a Will in Montana?


As Montana estate planning lawyers, a question that we frequently are asked is “what happens if I die without a will in Montana?

If you die without a will in Montana, your assets will be distributed according to the state’s intestacy laws. In this video, we will explain how intestate distribution happens in Montana.  In the interim, if you do not have a will and estate plan, we invite you to call our firm today to schedule a consultation with an experienced Montana estate planning lawyer.

Who Will Inherit My Assets If I Don’t Have a Will?

If you die in Montana without a will, your assets will be distributed in accordance with Montana intestacy laws. It does not matter if you personally told your children that they will receive specific assets, or if you explicitly stated that you did not want certain individuals to receive an inheritance.

Now, intestate distribution laws are very old, dating back to the Middle Ages, and it’s really the rule of blood.

Simply put, it is your closest blood relatives who will be your heirs under Montana law. That starts with your spouse, but if your spouse does not survive you, then it goes to your children. If you have no children or if your children do not survive you, it would try to go back up the chain to your parents, and then to your siblings.

The law may even look to your aunts and uncles or even your cousins. Once there is a category of people eligible to inherit, every heir in that group will inherit equally. Consequently, regardless of whether an individual intended for their assets to be distributed equally or not, or whether it’s even in their benefit to be treated equally, Montana law will distribute the assets equally.

What Types of Issues Can Dying Without a Will Create?

The biggest problem we see is if there is a child with special needs who stands to inherit under Montana intestacy laws who receives significant government benefits. That person could lose those government benefits for many years by just inheriting a lot of money in their own name. To avoid such situations, we often utilize a special needs trust.

We would have to get the court’s permission to set up the trust and to distribute the assets that the child would otherwise inherit into that trust just so they could preserve their government program benefits and not have to reapply, which is often a long and arduous process.

Another common issue concerns heirlooms and items with great sentimental value. As an example, if a parent dies without a will and leaves three children, all of the children are entitled to inherit one-third of the fair market value of the assets.  “Fair market value” does not take into account sentimental value.  A watch or item of jewelry may not have great fair market value, but it may have significant sentimental value.

This situation can lead to undesirable outcomes.  If more than one child wants the asset, it may lead to fighting between the children, heartache, and sometimes irreparable hurt feelings.  No one wants to have that be their legacy.

In a best case scenario, the children will work together to develop a distribution plan that is acceptable to all of them. But this can take time and can be complicated and can also result in increased legal fees.

A third common scenario involves matters such as a house or other real estate. One child may want to live in the house, and the other two children may want to receive the money from the sale of the house.  These situations are typically difficult and require additional legal assistance.  It may be that the child desiring to have the house will in fact receive the house if they relinquish the right to receive other estate assets, and/or if they pay the other two children for their share of the house.

In most cases, this situation can be much better handled if the process for handling the house was specified in the will.  For matters such as this, we urge clients to consider how they may wish to handle such matter, and (importantly) to discuss this matter with their children to (i) see if any of them wish to live in the house, and (ii) to tell the children what will happen with respect to the house when they pass.

Schedule A Consultation with an Experienced Montana Will Lawyer Today.

Ensure that your assets are distributed in accordance with your wishes. Call our offices today to schedule a consultation with one of our experienced Montana will and estate plan attorneys. We can listen to your estate planning objectives, explain your legal options, and help construct an estate plan that is tailored to your specific needs.