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Montana Debt Payment Priority
Support GuideMontana23 min read

Montana Debt Payment Priority

MCA 72-3-807 pays administration costs first, then funeral and last-illness bills as one class, then estate taxes and child support.

By Settled Editorial

When a Montana estate cannot pay everything it owes, MCA 72-3-807(1) picks who gets paid. The order is costs and expenses of administration, then reasonable funeral expenses together with last-illness medical and hospital bills, then federal and Montana estate taxes, then child support owed under a support order, then other debts with a federal or Montana preference, then other taxes, then everyone else. Funeral and hospital bills share one class in Montana, and child support has a class of its own.

Those two features are what make Montana's list its own. A template copied from another state usually splits the funeral bill from the hospital bill and has no child support class at all, so it pays the wrong people first on exactly the estates where the order decides anything.

Every rule below was read on September 27, 2026 at its section page on mca.legmt.gov, the Montana Legislature's host for the Montana Code Annotated 2025. The Legislature meets in odd years, so the 2025 code is the text in force. Read this page beside how creditors present claims, which owns the notice and the deadlines, and the personal representative's duties, which puts payment in order with the rest of the job. This is general information about Montana law rather than advice about one estate. An insolvent estate is where a licensed Montana attorney earns the fee, so talk to one before any money goes out.

ClassWhat it coversStatute
1Costs and expenses of administration72-3-807(1)(a)
2Reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness, including compensation of persons attending the decedent72-3-807(1)(b)
3Federal estate and Montana state estate taxes72-3-807(1)(c)
4Debt for a current support obligation and past-due support for the decedent's children under a support order as defined in 40-5-20172-3-807(1)(d)
5Debts with preference under federal and Montana law72-3-807(1)(e)
6Other federal and Montana state taxes72-3-807(1)(f)
7All other claims72-3-807(1)(g)

The Order Only Matters When the Money Runs Short

Start with the opening words of the section: "If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order." When the estate can pay every allowed claim, the classes never collide, because everyone gets paid.

They decide real outcomes in two situations. The first is an estate that was always insolvent, where the claims exceed the assets and somebody goes unpaid. The second is an estate that looked solvent and then stopped being solvent: a hospital bill that shows up late, or a tax bill that lands after the family has been paid. That second case is where MCA 72-3-808(3) turns a creditor's loss into the personal representative's personal problem.

MCA 72-3-807(2) adds two rules inside the list. "A preference may not be given in the payment of any claim over any other claim of the same class," so a class the estate cannot cover in full is split in proportion to each claim. And "a claim due and payable may not be entitled to a preference over claims not due." The bill with the loudest collector gets no head start.

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What Each Class Holds

Class 1, administration. The statute does not list what counts, but the costs of running the estate belong here, such as court filing fees, the cost of publishing the notice to creditors, and the fees of the personal representative, the attorney, and the accountant. MCA 72-3-803(4)(c) also keeps collection of compensation and expense reimbursement for the personal representative, the attorney, and the accountant outside the claim deadlines.

Class 2, funeral and last illness together. This is the Montana feature that templates copied from other states often miss. Reasonable funeral expenses and the reasonable and necessary medical and hospital expenses of the last illness, "including compensation of persons attending the decedent," form a single class. When class 2 cannot be paid in full, the funeral home and the hospital take the same percentage of their bills. The statute says "reasonable" funeral expenses, so the class covers a reasonable funeral bill rather than whatever was spent.

Class 3, estate taxes. This class holds federal estate tax and Montana state estate tax. The Montana Department of Revenue says plainly: "Montana does not have an estate tax for deaths after 2004." So for a death today, class 3 only has something in it when the estate owes federal estate tax.

Class 4, child support. Debt for a current support obligation and past-due support for the decedent's children, owed "pursuant to a support order as defined in 40-5-201." MCA 40-5-201(14) defines a support order as a temporary or final order for a specific amount of child support issued by a Montana district court, a court of another state, an Indian tribe, or a foreign country, or by a qualifying administrative agency. An informal promise to pay support, with no order behind it, does not fit this class.

Class 5, other preferred debts. Debts that federal or Montana law gives a preference. The federal priority statute is the one most estates meet, and it has its own section below.

Class 6, other taxes. Federal and Montana state taxes other than estate tax, such as income tax the decedent owed.

Class 7, everyone else. Credit cards, personal loans, medical bills from before the last illness, and unsecured debts of every other kind.

Allowances Come Off the Top Before Class 1

The seven classes are not the first call on a Montana estate. MCA 72-3-808(1) tells the personal representative to pay allowed claims in order of priority "after making provision for homestead, family, and support allowances." Montana sets those amounts in Title 72, chapter 2, part 4, and each section carries its own priority language. Read more on allowances that come before creditors and on the Montana family allowance.

  • Homestead allowance, MCA 72-2-412. The surviving spouse takes $22,500. With no surviving spouse, each minor and dependent child takes an equal share of $22,500. The statute says the allowance "is exempt from and has priority over all claims against the estate."
  • Family allowance, MCA 72-2-414. A reasonable allowance in money for the spouse and the children the decedent supported, for the period of administration, which "may not continue for longer than 1 year if the estate is inadequate to discharge allowed claims." It "is exempt from and has priority over all claims except the homestead allowance." Under MCA 72-2-415(1), the personal representative may set it at a lump sum up to $27,000 or installments up to $2,250 a month for 1 year. A different amount takes a petition to the court.
  • Exempt property, MCA 72-2-413. Up to $15,000 in value, above any security interest, in household furniture, automobiles, furnishings, appliances, and personal effects. Rights to exempt property "have priority over all claims against the estate." When there is not $15,000 of those items, the spouse or children can take other assets to make up the gap, but that make-up right "abates as necessary to permit earlier payment of homestead allowance and family allowance."

So among the three, the homestead allowance comes first, the family allowance second, and the exempt property make-up right last. MCA 72-2-415(1) adds one limit: if the estate is otherwise sufficient, property left by specific devise in the will may not be used to satisfy the homestead allowance or exempt property.

These are fixed dollar amounts printed in the statutes. The homestead and exempt property sections were last amended in 2019, by Chapter 313 of the Laws of Montana. They are separate from the homestead exemption in Title 70, chapter 32, which has its own figure and its own rules.

Where Montana Medicaid Fits

MCA 72-3-807 does not name Medicaid recovery in any class, and MCA 53-6-167 speaks to presentation and limits rather than to rank. Here is what the recovery statute does say.

  • The Department of Public Health and Human Services "shall execute and present a claim against the recipient's estate, within the time specified in the published notice to creditors," under 53-6-167(1). A claim presented in that window is not barred for lack of timely presentation, under 53-6-167(4)(a).
  • The department "may not recover under this section while there is a surviving spouse of the recipient or while there is a surviving child of the recipient who is under 21 years of age, blind, or permanently and totally disabled," under 53-6-167(9)(b). It can recover after that spouse or child dies.
  • Recovery reaches beyond the probate estate. Under 53-6-167(5)(a), property received by survivorship, joint tenancy, a life estate, or a living trust counts.
  • The personal representative or another affected person may apply for an undue hardship waiver under department rules, per 53-6-167(8).

The department's Third Party Liability page says Sections 53-6-167 through 169 and 178 through 188 "require the TPL program to recover Medicaid payments made on behalf of certain Medicaid recipients after the recipient's death." A lien the department filed during life against real property under 53-6-171 works differently: under 53-6-174 it attaches to the property like a judgment lien, subject to unpaid property taxes and earlier recorded mortgages. Whether an unsecured Medicaid claim falls in class 5 or class 7 is a question for a licensed Montana attorney when the estate is short.

Secured Debts Are Settled Outside the Seven Classes

A lender holding collateral does not stand in line with the credit card companies. MCA 72-3-803(4)(a) keeps "any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate" outside the claim deadlines. MCA 72-3-813 bars execution and levy against estate property under a judgment, but it does not stop enforcement of mortgages, pledges, or liens in an appropriate proceeding.

MCA 72-3-811 does the arithmetic. If the creditor surrenders its security, it is paid on the full allowed claim. If it exhausts the security first, it is paid on the allowed claim less the fair value of the security. If it has no right to exhaust the security or has not done so, it is paid on the allowed claim less the value of the security, as set by the security agreement or by agreement, arbitration, compromise, or litigation with the personal representative. Only that shortfall enters the seven classes, and it lands in class 7 unless some other rule moves it.

MCA 72-3-812 lets the personal representative pay off an encumbrance, renew it, or hand the property to the creditor if that is in the estate's best interest. Paying the loan does not enlarge the share of the person who inherits the property, unless that person is entitled to exoneration.

Claims Not Yet Due, and Interest

MCA 72-3-814 handles the claim nobody can price yet. If a future, contingent, or unliquidated claim becomes due or certain before distribution and has been allowed, it is paid like a present claim of the same class. Otherwise the personal representative, or the court on petition, may pay the claimant the present or agreed value with the claimant's consent, or arrange future payment through a trust, a mortgage, or a bond or security from a distributee.

Interest runs too. Under MCA 72-3-805(5), an allowed claim bears interest at the legal rate starting 60 days after the time for original presentation has expired, unless a contract sets its own interest. A slow administration of a short estate grows the claims it cannot pay.

Timing, and the Liability for Paying Early

MCA 72-3-808(1) sets the moment. When the earlier of the claim deadlines in 72-3-803 has passed, the personal representative pays the allowed claims in order, after making provision for the allowances, for claims presented but not yet allowed or under appeal, and for unbarred claims that may still come in, including administration costs. A claimant whose allowed claim goes unpaid can ask the court for an order directing payment, under 72-3-808(2).

MCA 72-3-808(3) is the trap. The personal representative "at any time may pay any just claim that has not been barred," and is then personally liable to any other allowed claimant injured by that payment if:

  1. the payment went out before the claim deadline passed and the personal representative did not require the payee to give adequate security for a refund, or
  2. the payment, through the personal representative's negligence or willful fault, deprived the injured claimant of its priority.

Put that beside 72-3-807(2). Paying a class 7 credit card in month two because the collector kept calling, and then finding the class 2 hospital bill cannot be paid, is the shape of a claim under 72-3-808(3)(b). Two facts decide the exposure: the class of every claim on the table, and whether the claim deadline has run. The Montana creditor claims guide sets out those deadlines, and the Montana probate timeline shows where they fall.

A Federal Claim Carries Its Own Priority Rule

Class 5 points outside the Montana code. Under 31 U.S.C. 3713(a)(1)(B), a claim of the United States Government "shall be paid first" when the estate of a deceased debtor, in the custody of the executor or administrator, "is not enough to pay all debts of the debtor." Section 3713(b) then makes a representative who pays any part of another debt before paying a Government claim "liable to the extent of the payment for unpaid claims of the Government."

That is a second personal liability rule, on federal terms, for the same person 72-3-808(3) already binds. If an estate that cannot pay everything owes the IRS or another federal agency, sort out how Section 3713 and the Montana list interact with a Montana attorney before any money moves.

When the Allowances and the Top Classes Take Everything

Montana gives a short exit for the estate the allowances and the top classes will use up anyway. Under MCA 72-3-1103, if the inventory and appraisal show that the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness, the personal representative, "without giving notice to the creditors, may immediately disburse and distribute the estate" and file a closing statement under 72-3-1104.

Look at that list. It is the three allowances plus classes 1 and 2 of 72-3-807. When nothing would reach classes 3 through 7, the statute lets the personal representative skip the notice that only those classes need. The printed figures are $22,500 and $15,000, plus a family allowance the personal representative can set at up to $27,000 without a court order, which together come to $64,500. The rest depends on the actual funeral, administration, and last-illness bills. The Montana small estate guide covers this route beside the affidavit.

Two Worked Examples

An estate the allowances use up. A Montana resident dies leaving a surviving spouse, $60,000 in a bank account, and no household goods worth counting. The claims are a $9,000 funeral bill, $6,000 of administration costs, a $30,000 hospital bill from the last illness, and $20,000 of credit card balances.

The allowances go first. The $22,500 homestead allowance leaves $37,500. The personal representative may set a family allowance of up to $27,000 without a court order, which leaves $10,500. The spouse's $15,000 exempt property right has no household goods to attach to, so it runs against other assets and takes the remaining $10,500. Nothing reaches the funeral home, the hospital, or the card issuers. And because the estate is worth less than the allowances plus administration, funeral, and last-illness costs, 72-3-1103 lets the personal representative distribute without publishing notice.

An estate where the classes decide. Change the facts. After the allowances, $30,000 is left. The claims are $5,000 of administration costs, a $9,000 funeral bill, a $20,000 last-illness hospital bill, $6,000 of past-due child support under a district court order, and $15,000 of credit cards.

Class 1 takes $5,000, leaving $25,000. Class 2 holds $29,000 of claims, so it cannot be paid in full. Under 72-3-807(2) the funeral home and the hospital split the $25,000 in proportion: the funeral home gets $7,758.62 and the hospital gets $17,241.38. The money is gone before class 4, so the child support and the credit cards get nothing. In a state that ranked the funeral ahead of the hospital, the funeral home would have been paid in full. In Montana it takes a share.

Abatement Is a Separate List

Creditors and heirs run on different rules. MCA 72-3-807 ranks claims. MCA 72-3-901 ranks the shares of the people who inherit once claims are settled, and abates them "without any preference or priority as between real and personal property" in this order: property not disposed of by the will, residuary devises, general devises, then specific devises. Within each group, abatement is in proportion. If the will sets its own order, or the listed order would defeat the plan, 72-3-901(3) lets the shares abate as needed to carry out the testator's intent.

What Survives Distribution

Closing the estate does not end every exposure.

  • MCA 72-3-1012(1) lets an undischarged claim that is not barred be pursued against distributees after distribution. No distributee is liable for amounts received as exempt property or homestead or family allowances, or for more than the value of the distribution when made. Between distributees, each bears the cost as if the claim had been paid during administration, and one who fails to tell the others about a demand in time loses the right of contribution.
  • MCA 72-3-1011 bars claims by successors and creditors against the personal representative for breach of fiduciary duty unless a proceeding starts within 6 months after the closing statement is filed. Fraud, misrepresentation, and inadequate disclosure about settling the estate stay outside that bar.
  • MCA 72-6-112(2) makes people who received nonprobate transfers, such as a transfer on death deed or a revocable trust, liable for allowed claims and statutory allowances to the extent the probate estate is short, capped at what they received. Joint tenancy real estate is excluded, and the proceeding must start within 1 year after the death under 72-6-112(8).

When to Call a Montana Attorney

Talk to a licensed Montana attorney when:

  • the claims exceed the assets, so 72-3-807 decides who goes unpaid
  • a federal tax or other federal debt is in the mix, because 31 U.S.C. 3713 adds its own priority and its own personal liability
  • the decedent received Medicaid, because the rank of the department's claim is not written into 72-3-807
  • a class boundary is arguable, such as whether a bill belongs to the last illness or to care years earlier
  • the decedent owed child support and it is unclear whether a support order under 40-5-201 exists
  • a secured creditor and the estate disagree on the value of the collateral under 72-3-811
  • you already paid a claim and now suspect a higher class will go short

You can find the district court that handles probate for each county on the Montana courts page.

Frequently Asked Questions

What order does Montana pay estate debts in?

MCA 72-3-807(1) sets seven classes for an estate that cannot pay every claim in full: costs and expenses of administration; reasonable funeral expenses together with reasonable and necessary medical and hospital expenses of the last illness; federal estate and Montana state estate taxes; current and past-due child support owed under a support order as defined in 40-5-201; debts with preference under federal and Montana law; other federal and Montana state taxes; and all other claims. Under 72-3-807(2) no claim is preferred over another in the same class, and a claim that is due gets no preference over one that is not yet due.

Are funeral expenses paid before medical bills in Montana?

No. Montana puts them in the same class. MCA 72-3-807(1)(b) lists reasonable funeral expenses and reasonable and necessary medical and hospital expenses of the last illness, including compensation of persons attending the decedent, as one class. When the money left after administration costs cannot cover that class in full, the funeral home and the hospital share it in proportion to their claims.

Does child support get paid ahead of other debts in a Montana estate?

Yes. MCA 72-3-807(1)(d) makes debt for a current support obligation and past-due support for the decedent's children, owed under a support order as defined in 40-5-201, the fourth class. It ranks behind administration costs, funeral and last-illness expenses, and estate taxes, and ahead of other preferred debts, other taxes, and all general creditors.

Do the family allowances come before creditors in Montana?

Yes. MCA 72-2-412 says the $22,500 homestead allowance is exempt from and has priority over all claims against the estate. MCA 72-2-414(1) gives the family allowance priority over all claims except the homestead allowance, and MCA 72-2-413 gives the $15,000 exempt property right priority over all claims. MCA 72-3-808(1) tells the personal representative to pay claims only after making provision for homestead, family, and support allowances.

Where does a Montana Medicaid claim rank?

MCA 72-3-807 does not name Medicaid in any class, and MCA 53-6-167 governs presentation and limits rather than rank. The Department of Public Health and Human Services presents its claim within the time in the published notice to creditors, and under 53-6-167(9)(b) it may not recover while a surviving spouse, or a child who is under 21, blind, or permanently and totally disabled, survives. Where the class matters on a short estate, ask a licensed Montana attorney.

Can a Montana personal representative be personally liable for paying in the wrong order?

Yes. MCA 72-3-808(3) lets the personal representative pay any just claim that has not been barred at any time, then makes the personal representative personally liable to another allowed claimant injured by the payment in two cases: the payment went out before the claim period ended and the personal representative did not require the payee to give adequate security for a refund, or the payment deprived the injured claimant of priority through the personal representative's negligence or willful fault.

What happens to a mortgage when a Montana estate is insolvent?

The security is handled first and only the shortfall enters the seven classes. MCA 72-3-811 pays a secured claim on the full allowed amount if the creditor surrenders the security, and otherwise on the allowed amount less the value of the security. MCA 72-3-803(4)(a) keeps any proceeding to enforce a mortgage, pledge, or other lien outside the claim bar, so the lender keeps its lien when the estate runs short.

Sources:

It is not legal advice.

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Montana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.