Preparing the appropriate documents to transfer the ownership of your assets to loved ones after your death is an emotional and critically important task. Your will is your statement of how you want your property distributed, to whom, and in what proportions, upon your death. The questions and answers below describe five things about will preparation that you may wish you knew sooner.
Why Hire an Attorney to Draft Your Will?
In Montana, any person over age 18 can make a will if your mind is rational and you are not under undue influence from another person. The will must be in writing; Montana law does not accept verbal or video wills. That does not mean, however, that you cannot have a video that shows you signing the will. Attorneys often use videos of the will signing to demonstrate the “of sound mind” and not “under undue influence” part of the law.
That begs the question: why hire an attorney to create your will? It is possible under Montana law to write your own will in your own handwriting. A handwritten will is called a holographic will. You must take care, however, that both the signature and the actual distribution provisions of the document are in your valid handwriting.
Experience has shown that holographic wills often result in problems for the court. Wills can be denied by the Probate Court if the provisions contain errors. Also, the Probate Court may not interpret the words used in holographic wills the way they were intended by the author. Even self-help computer programs may result in unintended consequences and legal perils. Experienced probate attorneys, on the other hand, undergo specialized training in the field of knowledge. They know the precise language to use to put your desired distributions into effect and to have them interpreted by the court as you intended.
What is Probate?
Probate is the legal process where the Probate Court Judge reviews the will to determine whether the will is valid and to whom the property/assets will descend. It is also the place where a person’s will is administered and it is the appropriate place for the administration of the estate of someone who dies intestate (without a will). If a person dies after having signed a valid will, then the Probate Court will appoint the executor named in the will to administer the estate.
Not all estates require probate proceedings, especially those with low asset value. Estates with high-value assets require probate proceedings.
If you die without a will, the Probate Court will distribute your property and assets in the order specified by Montana laws of intestacy to:
- your spouse and/or children; or, if none,
- your grandchildren or your parents.
The court will continue down the list of your relatives until it finds none by blood or marriage. At that point, the state takes your property in an action called escheat.
What Kinds of Provisions Must Be in a Will?
Montana’s laws regarding wills require that certain provisions appear in a valid will. For example,
- The will must state that the testator is 18 or older and is of sound mind and not under undue influence.
- If you are married at the time of your death, your will must make provision for your surviving spouse under Montana law. At a minimum, your spouse is entitled to a percentage of your estate based upon the length of the marriage. If you make no provision in your will for your surviving spouse and instead leave all your assets to your children, your surviving spouse will be entitled to elect the appropriate spousal percentage against the amounts you intended to distribute to your children.
- You do not have to include bequests to your children in your will or leave a nominal dollar amount to prove you did not forget about them. It is a good practice, however, to recognize your children by name when creating the will to avoid a child contesting the provisions after your death.
- If you have minor children, you must include a provision for guardianship of those offspring and conservatorship of any assets you bequeath to them. Alternatively, you may leave money and property to children in a trust until they are of age. The appropriate age for distribution under a trust is up to you. You may use the age of majority (age 18 in Montana) or some later age.
- A valid will must be signed by two adult witnesses who are not beneficiaries (and not a spouse of a beneficiary) under the provisions of the will.
- The law permits you to name a personal representative in your will to see that its terms carry out as you intend.
While Montana does not require a notary to certify the witnesses to a will, a notarized will may help speed probate proceedings along. A notarized will in Montana is known as a “self-proving will” which means that the court does not have to contact the witnesses before it can accept the will.
Taking Steps to Finalize a Will
The following steps will help you finalize your will:
- Read the provisions carefully to make sure they distribute your property the way you want and to whom you want. Make sure you’ve included all your property in the listing.
- Have an expert review your will for legal and tax implications, especially if you have questions regarding certain provisions.
- Make sure you sign and date the will in front of two witnesses over age 18, of sound mind, who also sign and date the document.
- If you want a self-proving will, have the signatures notarized.
Making Changes in Your Will.
You are allowed to make changes in your will but do it the right way. There are two ways:
- Make a new will that supersedes the first one.
- Create a formal addition to the will, called a codicil, that describes the change you want to make.
And, of course, you will need to sign and have witnesses for either of these paths.
To talk more about this, or anything else, please contact us. We look forward to helping you with all your legal questions.
You may enjoy the July 2020 article from Montana State University entitled “MSU Extension Suggests Montanans Consider Writing an Ethical Will During the Pandemic.”