First Light / Montana Estate Planning
Estate Planning in Montana
Montana has no state estate tax, no inheritance tax, and a UPC-based probate system that handles most estates informally. But the state's augmented estate rules give surviving spouses a powerful claim that reaches well beyond probate assets — a detail that catches many families off guard.
Free · No account needed · 3 minutes
Last updated: April 2026
What most people don't know about Montana
In 2023, Montana expanded its augmented estate to include retirement accounts — 401(k)s, IRAs, and similar plans are now counted when calculating a surviving spouse's elective share. Previously, retirement accounts were excluded, which allowed a spouse to be effectively disinherited by directing wealth into tax-deferred accounts with non-spouse beneficiaries. The change closed a significant loophole. Combined with the existing augmented estate framework (which already included revocable trusts and joint accounts), this means virtually no asset class is safe from a spousal elective share claim in Montana.
Source: MCA § 72-2-222(3)(c), as amended 2019
Plain English Rules
- •A will must be signed by two witnesses or, if holographic, must have its material portions entirely in the testator's handwriting
- •Montana has no state estate tax and no inheritance tax — only federal estate tax applies to very large estates
- •The elective share uses the augmented estate, which includes nonprobate transfers like trusts and joint accounts
- •Small estates under $100,000 can be transferred by affidavit without formal probate (threshold raised from $50,000 in 2023)
- •A durable power of attorney must include specific language to remain effective during incapacity
- •Informal probate is available for uncontested estates, avoiding the need for court hearings
What Actually Breaks
Will signed without two witnesses and not entirely in testator's handwriting
Invalid — doesn't qualify as either an attested or holographic will
Assets transferred to revocable trust to avoid spousal claim
Augmented estate calculation includes trust assets — spouse can still claim elective share
POA lacks durability language
Authority terminates at incapacity — family may need conservatorship proceeding
Blended family with no will
Spouse receives the first $100,000 plus half the balance — children from prior relationship inherit the rest
No healthcare directive
Family members may disagree on treatment decisions with no legal authority to resolve it
Self-proving affidavit omitted
Witnesses must testify in court — if unavailable, probate is delayed
If This Is Your Situation
Married with children, all from current marriage
Spouse inherits entire estate under UPC if all descendants are shared
Married with children from a prior relationship
Spouse receives the first $100,000 plus half the balance — your children inherit the rest
Estate under $50,000 with no real property issues
Small estate affidavit available — no formal probate required
Single with minor children
Without a will naming a guardian, a court decides who raises your children
Marriage of 15+ years, spouse disinherited in will
Spouse can claim 50% of the augmented estate, including nonprobate assets
At a Glance
| Will witnesses | 2 required |
| Why it matters | Must sign within a reasonable time after witnessing the testator's signature or acknowledgment |
| Notarization required | Not required |
| Notarization note | Self-proving affidavit available and recommended |
| Self-proving affidavit | Allowed and recommended |
| Durable POA | Recognized |
| POA note | Must include durability language to survive incapacity |
| Healthcare directive | Recognized |
| Directive note | Montana Rights of the Terminally Ill Act and appointment of healthcare agent |
| Probate timeline | Typically 6–12 months (informal probate); longer for formal proceedings |
| Probate filing fees | Typically $200–$350 depending on county |
| Small estate threshold | $100,000 (small estate affidavit, raised from $50K in 2023) |
| Holographic wills | Valid if signature and material portions are in the testator's handwriting |
How Montana Actually Works
Montana adopted the Uniform Probate Code, which means its estate planning rules are more standardized and generally more forgiving than traditional states. Holographic wills are valid, interested witnesses don't forfeit gifts, and informal probate is available for uncontested estates. For most Montanans, the system works smoothly.
The state's tax environment is favorable. Montana imposes no state estate tax and no inheritance tax. This means that for the vast majority of estates, no death-related tax applies at either the state or federal level. Only estates exceeding the federal exemption face any tax liability.
Where Montana planning gets more complex is in the augmented estate. This UPC concept expands the pool of assets subject to a surviving spouse's elective share beyond just probate assets. Revocable trusts, joint accounts, life insurance, and other nonprobate transfers are all included. The elective share percentage increases with the length of the marriage, reaching 50% after 15 years. This means that common strategies like transferring assets to a trust or retitling property to avoid spousal claims are ineffective in Montana.
For most families, Montana estate planning is straightforward: a properly executed will with a self-proving affidavit, a durable power of attorney, and an advance healthcare directive. Trusts add value for probate avoidance and privacy but don't change the spousal claim landscape.
Without a Will: How Montana Distributes Your Estate
Montana follows common law property rules. When someone dies without a will, state intestacy law determines who inherits — and the result depends on your family structure.
Montana follows the Uniform Probate Code for intestate succession. When someone dies without a will, distribution depends on family structure — and the state's rules are designed to protect surviving spouses while providing clear fallbacks for other family members.
The key variables are whether the decedent was married, whether there are surviving descendants, and whether those descendants are shared with the surviving spouse.
Married with children (same marriage)
Spouse inherits the entire estate if all descendants are also descendants of the surviving spouse and the spouse has no other descendants.
Married with children from a prior relationship
Spouse inherits the first $100,000 plus one-half of the balance. Decedent's children inherit the rest.
Married, no children
Spouse inherits the entire estate if no descendants survive. If parents survive but no descendants, spouse receives the first $300,000 plus three-quarters of the balance.
Single with children
Children inherit everything equally by representation.
Single, no children
Parents inherit equally. If no parents, siblings and their descendants. Then grandparents and their descendants.
Survival period: 120 hours (5 days)
Montana follows UPC intestacy rules. The augmented estate concept applies to elective share claims but not to intestacy distribution.
Wills in Montana
What makes a will valid
A written will signed by the testator and attested by two witnesses, or a holographic will with the signature and material portions in the testator's handwriting.
What people think
That putting assets in a trust keeps them safe from a surviving spouse's claim.
What actually happens
Montana's augmented estate includes revocable trusts, joint accounts, and other nonprobate transfers. A surviving spouse can claim their elective share against these assets.
Common failure
Failing to properly witness an attested will or relying on a holographic will that includes typed or printed material in the dispositive provisions.
When a trust is better
Multi-state property, probate avoidance, privacy, or managing distributions for minors. Note that trusts do not shield assets from spousal elective share claims in Montana.
Power of Attorney in Montana
What it does
Grants authority to a named agent to manage financial and legal affairs.
Key rule
Must include durability language to survive incapacity. Montana follows the Uniform Power of Attorney Act.
Real-world friction
Financial institutions may reject POAs they consider outdated. Using the statutory form helps.
Common mistake
Not specifying durability, or naming an agent without considering backup agents.
Healthcare Directive in Montana
What it covers
End-of-life treatment preferences under the Montana Rights of the Terminally Ill Act.
What's different
Montana's advance directive and healthcare agent appointment are governed by separate statutes. You should have both documents.
Execution requirements
Must be signed by the principal with two witnesses.
Common misunderstanding
Confusing a financial POA with a healthcare directive — they serve different purposes and authorize different types of decisions.
Probate in Montana
When required
When assets are held solely in the decedent's name without beneficiary designations or joint ownership.
What makes Montana different
Montana's UPC adoption means informal probate is available for uncontested estates. The augmented estate concept makes spousal elective share claims unusually broad.
Probate paths
Informal probate· 6–12 months
Uncontested estates processed without court hearings.
Formal probate· 12–24 months
Required for contested estates or complex situations.
Small estate affidavit· 30+ days
Estates under $50,000 can be transferred by affidavit 30 days after death.
What people get wrong
Assuming Montana probate is always complex. For uncontested estates with proper documentation, informal probate is straightforward.
Trusts in Montana
When a trust is useful
Probate avoidance, privacy, multi-state property, managing distributions for minors or beneficiaries with special needs.
When a trust is unnecessary
Simple estates under $50,000 (small estate affidavit available) or straightforward estates with clear beneficiaries.
Key mistake
Assuming a trust shields assets from the surviving spouse's elective share. Montana's augmented estate includes trust assets.
Common Mistakes
Assuming a trust protects assets from spousal claims
Montana's augmented estate includes revocable trusts, joint accounts, and other nonprobate transfers in the elective share calculation.
Relying on a holographic will with typed material provisions
A holographic will requires the material portions to be in the testator's handwriting. Typed dispositive clauses can invalidate it.
Not including durability language in a POA
Without explicit language, the POA terminates at incapacity.
Assuming Montana has a state estate tax
Montana has no state estate tax and no inheritance tax. Only the federal estate tax applies to very large estates.
Skipping the self-proving affidavit
Without it, witnesses must testify during probate. If they're unavailable, this creates delays.
Not updating estate plans after divorce
Montana automatically revokes will provisions for a former spouse, but beneficiary designations on insurance and retirement accounts may not be affected.
What Most People Actually Need
Most people don't need a trust. They need a valid will, a durable power of attorney, and a healthcare directive — executed correctly under Montana law. The most common mistakes are ones of execution, not planning.
Check your situation →Frequently Asked Questions
Does Montana have an estate tax?›
No. Montana has no state estate tax and no inheritance tax. Only the federal estate tax applies, and only to estates exceeding the federal exemption.
Are holographic wills valid in Montana?›
Yes. A holographic will is valid if the signature and material portions are in the testator's handwriting. No witnesses are required, but the will is harder to prove in probate.
What is the augmented estate in Montana?›
The augmented estate is the total value of the decedent's probate estate plus nonprobate transfers, including revocable trusts, joint accounts, and certain life insurance. It's used to calculate the surviving spouse's elective share, which increases with the length of the marriage up to 50% after 15 years.
What happens if you die without a will in Montana?›
Montana's UPC intestacy laws distribute assets based on family structure. A surviving spouse generally inherits the entire estate if all descendants are shared. In blended families, the spouse receives a priority amount plus half the balance.
What is the small estate threshold in Montana?›
$50,000. Estates at or below this value can be transferred by affidavit without formal probate, provided at least 30 days have passed since the date of death.
Can a trust avoid probate in Montana?›
Yes, a properly funded trust avoids probate. However, trust assets are included in the augmented estate for elective share calculations and remain subject to federal estate tax.
Primary Sources
- Montana Code (Wills, Execution) MCA § 72-2-522 ↗
- Montana Code (Intestate Succession) MCA § 72-2-112 ↗
- Montana Code (Augmented Estate / Elective Share) MCA § 72-2-222 ↗
- Montana Code (Small Estate Affidavit) MCA § 72-3-1101 ↗
- Montana Code (Informal Probate) MCA § 72-3-303 ↗
- Montana Code (Advance Directives) MCA § 50-9-103 ↗
Know exactly where you stand
Answer a few questions and get a plain-English summary of what you need under Montana law.
Check your situation →Free · No account needed · 3 minutes
This page is for informational purposes only and does not constitute legal advice. Montana law is subject to change. Verify current statutes and consult a licensed attorney for your specific situation. Last updated: April 2026.