Montana Estate Planning Basics

Montana estate planning comes down to four documents. A will says who inherits and who raises your children. A financial power of attorney covers your money while you are alive but unable to act. A living will and a health care power of attorney cover your medical decisions in the same situation. A living trust is optional and sits on top of the rest.

Montana splits this law across two titles of the Montana Code Annotated, and knowing where each piece lives saves confusion. Wills, powers of attorney and trusts sit in Title 72, which carries Montana's version of the Uniform Probate Code, the Uniform Power of Attorney Act at Chapter 31, Part 3, and the Montana Uniform Trust Code at Chapter 38. The living will sits in Title 50, Chapter 9, the Montana Rights of the Terminally Ill Act. Every section quoted below was read on the Montana Legislature's code site, where each page is labeled Montana Code Annotated 2025. The Legislature meets in odd-numbered years, so the 2025 code is the text in force until acts of the 2027 session take effect.

This guide is the map. Each section states the Montana signing rule, then points at the deeper guide.

The Four Documents At A Glance

Document	What it controls	When it works	Montana signing rule
Will	Who inherits probate property, who serves as personal representative, who becomes guardian of minor children	After death	Writing, your signature, and the signatures of at least two witnesses, or a handwritten will (72-2-522)
Financial power of attorney	Money, accounts, real estate, bills	While you are alive	Your signature; a notary makes the signature presumed genuine but is not required (72-31-305)
Living will and health care power of attorney	Life-sustaining treatment and other medical decisions	While you are alive	The living will needs two witnesses (50-9-103); the health care power of attorney needs a writing with durability words (72-5-501)
Revocable living trust	Only the assets you retitle into it	While alive and after death	Revocable unless the terms expressly say it is irrevocable (72-38-602)

1. A Montana Will

Who can sign one. MCA 72-2-521 is one sentence: an individual 18 or more years of age who is of sound mind may make a will.

How you sign it. MCA 72-2-522(1) asks for three things. The will is in writing. You sign it, or someone else signs your name in your conscious presence and at your direction. Then at least two individuals sign, each within a reasonable time after witnessing either your signing or your acknowledgment of that signature or of the will. Nothing in the section calls for a notary, and the witnesses do not have to sign while you watch.

Handwritten wills count. Under 72-2-522(2), a will that fails the witness rule is still valid as a holographic will, whether or not anyone witnessed it, if the signature and the material portions of the document are in your handwriting.

A flawed will can still be saved. MCA 72-2-523 treats a document that missed a 72-2-522 formality as if it had been signed correctly, when the person offering it proves by clear and convincing evidence that you intended it as your will. That is a court fight, so do not plan on it. Sign the will properly the first time.

Make it self-proved while you are at it. MCA 72-2-524 lets you and your witnesses sign sworn statements before an officer authorized to administer oaths, either at signing or any time afterward. Subsection (3) adds a safety net: a signature on the self-proving affidavit counts as a signature on the will if that is needed to prove it was signed correctly.

The full picture, including who may witness and how a will is revoked, is in Montana will requirements.

2. A Financial Power Of Attorney

This document names an agent to handle money and property while you are alive. Montana adopted the Uniform Power of Attorney Act in 2011, and two of its rules decide most of what matters.

It is durable by default. MCA 72-31-304 says a power of attorney created under the part is durable unless it expressly provides that it ends when you become incapacitated. You do not add special words to keep it alive. You add words to switch durability off.

The notary is a presumption, not a requirement. MCA 72-31-305 requires only that you sign, or that someone sign your name in your conscious presence at your direction. The second sentence says a signature acknowledged before a notary public or other individual authorized to take acknowledgments is presumed to be genuine. Several online form sites say Montana requires a notary. The statute does not, but sign in front of one anyway. Banks and title companies expect the acknowledgment, and a power of attorney used to convey real estate has to be acknowledged or proved before the county clerk and recorder can record it under MCA 70-21-203.

It can name your future guardian too. MCA 72-31-308(1) lets you nominate a conservator or guardian in your power of attorney, and the court has to follow your most recent nomination except for good cause or disqualification.

Two boundaries are worth memorizing. This document covers money, not medicine, because MCA 72-31-303(2) takes a power to make health care decisions out of the act. And it ends when you die, at which point a personal representative appointed through the district court takes over. See a durable power of attorney for the statutory form and the powers that need an express grant.

3. A Living Will And A Health Care Power Of Attorney

Montana handles medical decisions with two separate instruments, and sites that blend them get the signing rules wrong.

The living will. MCA 50-9-103(1) lets an individual of sound mind and 18 or older sign a declaration governing the withholding or withdrawal of life-sustaining treatment. The declaration must be signed by you or by another person at your direction and must be witnessed by two individuals. It can also designate another adult of sound mind to make those decisions for you. Subsections (2) and (3) print two optional forms, one that directs your physician or advanced practice registered nurse and one that names a designee. The section imposes no notary requirement, and under subsection (5) a health care provider who receives a copy has to put it in your medical record.

The health care power of attorney. MCA 72-5-501(1) defines a durable health care power of attorney as a writing that names your agent and contains words such as "This health care power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time", or similar words showing you want it to work after you lose capacity. Leave those words out and the document may stop working at the moment you need it. The section sets no witness count of its own. Under 72-5-501(2) you can also nominate the guardian of your person in it, and the court follows your most recent nomination except for good cause or disqualification.

How the two connect. Under 50-9-103(4), a health care power of attorney that contains written authority to make life-sustaining treatment decisions counts as a declaration designating another individual. The two-witness rule belongs to the living will. Many people sign both on one form with two witnesses, which satisfies each section.

If you sign nothing. MCA 50-9-106(2) sets a family priority list for a patient in a terminal condition who cannot decide and has no declaration: your spouse, then a majority of your reasonably available adult children, then your parents, then a majority of your adult siblings, then your nearest other adult relative. An equal split in a class does not pass the decision to the next one, and subsection (5) voids a consent that conflicts with your expressed intention. The list covers end-of-life treatment only. It does not appoint anyone for your day-to-day medical care. The deeper guide is a living will and health care power of attorney.

4. A Trust, When It Earns Its Place

A trust is an add-on, not a replacement. The Legislature enacted the Montana Uniform Trust Code in 2013 as Title 72, Chapter 38, and three rules tell you most of what you need before deciding.

Capacity is the will standard. MCA 72-38-601 says the capacity required to create, amend, revoke or add property to a revocable trust is the same as the capacity required to make a will. MCA 72-38-402(1) adds the other creation requirements: an intention to create the trust, a definite beneficiary or one of the listed exceptions, duties for the trustee, and different people as sole trustee and sole beneficiary.

Revocable is the default, with a date trap. MCA 72-38-602(1) lets you revoke or amend a trust unless its terms expressly say it is irrevocable. That default does not apply to a trust created under an instrument signed before October 1, 1989, so an old family trust needs a closer read. Subsection (5) lets your agent under a power of attorney revoke or amend the trust only if both the trust and that power of attorney expressly allow it.

A trust does not hide assets from creditors. MCA 72-38-505(1)(c) makes property of a trust that was revocable at death answerable for your creditors, the costs of administering your estate, funeral expenses and statutory allowances to a surviving spouse and children, to the extent the probate estate cannot cover them.

A trust also controls only what you retitle into it. An unfunded trust changes nothing. Read whether you need a Montana trust for the funding steps and how to avoid probate in Montana for the cheaper tools. If you want a pet cared for after you die, Montana pet trusts covers the two statutes that allow a trust for a pet.

Naming Guardians For Minor Children

A will is where you say who raises your children. MCA 72-5-211(1) lets the parent of a minor appoint by will a guardian of an unmarried minor.

Three details decide how that appointment behaves. It becomes effective when the guardian files an acceptance in the court where the will is probated, and only if by then both parents have died or the surviving parent has been adjudged incapacitated. If both parents have died, the appointment by the parent who died later has priority. And under 72-5-211(2), the guardian has to give written notice of acceptance to the child and to the person caring for the child or the child's nearest adult relatives.

Nominations for your own future guardian work through your financial power of attorney and your health care power of attorney, as described above. Both routes are covered in naming a guardian.

The House Often Moves Outside The Will

Montana lets you pass real property with a recorded deed instead of a court case. MCA 72-6-404 authorizes a transfer on death deed, and MCA 72-6-408 requires it to carry the elements and formalities of a properly recordable deed, state that the transfer happens at your death, and be recorded before your death with the county clerk and recorder where the property sits.

That last requirement does the damage when it is missed. A deed signed and left in a drawer transfers nothing. Read the Montana transfer on death deed before you choose between a deed and a trust.

What Montana Decides If You Sign Nothing

Nobody escapes having a plan. Skipping the documents means Montana's defaults apply.

Your property. The intestacy rules in Title 72, Chapter 2 pick your heirs by category and in fixed shares. See Montana intestate succession.
Your end-of-life care. The family list in 50-9-106(2) picks who consents, and only for a terminal condition.
Your money during incapacity. With no financial power of attorney, someone has to ask the district court to appoint a conservator, which means a petition, a hearing and ongoing reporting.
Your children. With no appointment in a will, the court chooses.
Your estate's manager. The court appoints a personal representative under the statutory priority list rather than the person you would have named. Montana executor duties covers that job, and the Montana probate guide walks through the case itself.

Montana Charges No Estate Tax And No Inheritance Tax

The Montana Department of Revenue says it in three lines. Montana no longer collects estate or inheritance taxes. Its inheritance tax was repealed in November 2000 and does not apply to any death after January 1, 2001. Montana does not have an estate tax for deaths after 2004.

The estate tax sections themselves were never repealed. MCA 72-16-904 still imposes a tax on estates subject to the federal estate tax, and it produces nothing today because the next section measures it by a federal credit that no longer exists. The federal estate tax still applies to very large estates. Montana estate tax rules has the current federal threshold.

A Small Estate Is Still Worth Planning

Montana's affidavit route is generous, and people use it as a reason to sign nothing. Look at what it does. MCA 72-3-1101(1) lets a successor collect by affidavit when the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000, when 30 days have passed since the death, and when no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction.

The affidavit collects debts owed to the decedent, tangible personal property and instruments such as stock. It does not convey real estate. So the route cuts paperwork after a death and answers none of the questions a will, a power of attorney and a living will answer while you are alive. See the Montana small estate affidavit for the full test.

Where To Start

List what you own and how it is titled. Titling decides more than your will does. Joint accounts, retirement plans and life insurance pass by their own rules.
Decide the four people. Who inherits, who serves as personal representative, who handles your money during incapacity and who makes your medical calls.
Check your beneficiary designations. Retirement accounts and insurance policies follow the form on file, not your will.
Sign each document to Montana's rules. Two witnesses for the will, your signature before a notary for the financial power of attorney, two witnesses for the living will, and durability words in the health care power of attorney.
Decide about the house. A recorded transfer on death deed, joint ownership or a funded trust each handle it differently.
Give copies to the people who need them. Your doctor needs the living will, and your agent needs your power of attorney. A will nobody can find does nothing.
Review after any change. Marriage, divorce, a birth, a death, a move into or out of Montana, or a big change in what you own.

When To Bring In A Montana Attorney

Handle a simple plan yourself if you like. Bring in a licensed Montana attorney when you have a blended family, a child with special needs, a business or ranch, real property in more than one state, an estate near the federal exemption, or any reason to expect a fight. An attorney is also the right call if a family member is already losing capacity, because 72-2-521 and 72-38-601 measure capacity at the moment of signing.

Frequently Asked Questions

What documents does a Montana estate plan need?

Four, and the fourth is optional. A will decides who inherits your probate property, who serves as personal representative, and who you appoint as guardian of your minor children. A financial power of attorney under the Uniform Power of Attorney Act, MCA 72-31-301 and following, covers your money if you cannot act. A living will under MCA 50-9-103 and a durable health care power of attorney under MCA 72-5-501 cover your medical decisions. A revocable living trust under the Montana Uniform Trust Code, Title 72, Chapter 38, sits on top of those when your situation calls for it.

How many witnesses does a Montana will need?

At least two. MCA 72-2-522(1) requires a will in writing, signed by you or by someone else in your name in your conscious presence and at your direction, and signed by at least two individuals who each sign within a reasonable time after witnessing your signing or your acknowledgment. The separate route is a holographic will under MCA 72-2-522(2), valid whether or not witnessed if the signature and material portions are in your handwriting.

Does a Montana financial power of attorney have to be notarized?

Not to be valid. MCA 72-31-305 requires only that you sign it, or that someone sign your name in your conscious presence at your direction. A signature acknowledged before a notary public or other individual authorized to take acknowledgments is presumed genuine, which is why banks expect one. And a power of attorney used to convey real estate has to be acknowledged or proved before the county clerk and recorder can record it.

Does Montana have a living will?

Yes. The Montana Rights of the Terminally Ill Act lets an individual of sound mind and 18 or older sign a declaration governing the withholding or withdrawal of life-sustaining treatment. MCA 50-9-103(1) requires the declaration to be signed by you or at your direction and witnessed by two individuals. It can also designate another adult to make those decisions. The statute prints two optional forms and imposes no notary requirement.

Do I need a living trust in Montana?

Not usually, and a trust does not replace the other documents. Under MCA 72-38-602(1), a trust is revocable unless its terms expressly provide that it is irrevocable, and it controls only the assets you retitle into it. MCA 72-38-505(1)(c) also makes property of a trust that was revocable at death answerable for your creditors, estate costs, funeral expenses and statutory family allowances when the probate estate falls short.

Does Montana charge an estate tax or an inheritance tax?

No. The Montana Department of Revenue says Montana no longer collects estate or inheritance taxes, that its inheritance tax was repealed in November 2000 and does not apply to any death after January 1, 2001, and that Montana does not have an estate tax for deaths after 2004. The federal estate tax still exists and reaches only very large estates.

Who makes my end-of-life decisions in Montana if I sign nothing?

For a patient in a terminal condition who cannot decide and has no declaration, MCA 50-9-106(2) lets family consent to withholding or withdrawing life-sustaining treatment in this order: spouse, a majority of reasonably available adult children, parents, a majority of adult siblings, then the nearest other adult relative. An equal split within a class does not pass the decision to the next class, and a consent that conflicts with your expressed intention is not valid.

This guide is general information about Montana estate planning documents. Confirm anything that affects your own situation with a licensed Montana attorney before you sign, because these documents decide who controls your money, your medical care and your property.

Sources:

Title: MCA 72-2-521, Who may make a will. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0050/section_0210/0720-0020-0050-0210.html
Title: MCA 72-2-522, Execution -- witnessed wills -- holographic wills. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0050/section_0220/0720-0020-0050-0220.html
Title: MCA 72-2-523, Writings intended as wills. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0050/section_0230/0720-0020-0050-0230.html
Title: MCA 72-2-524, Self-proved will. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0050/section_0240/0720-0020-0050-0240.html
Title: MCA 72-31-303, Applicability. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0310/part_0030/section_0030/0720-0310-0030-0030.html
Title: MCA 72-31-304, Power of attorney is durable. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0310/part_0030/section_0040/0720-0310-0030-0040.html
Title: MCA 72-31-305, Execution of power of attorney. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0310/part_0030/section_0050/0720-0310-0030-0050.html
Title: MCA 72-31-308, Nomination of conservator or guardian -- relation of agent to court-appointed fiduciary. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0310/part_0030/section_0080/0720-0310-0030-0080.html
Title: MCA 70-21-203, Acknowledgment of instruments required -- exceptions. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0700/chapter_0210/part_0020/section_0030/0700-0210-0020-0030.html
Title: MCA 50-9-103, Declaration relating to use of life-sustaining treatment -- designee. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0500/chapter_0090/part_0010/section_0030/0500-0090-0010-0030.html
Title: MCA 50-9-106, Consent by others to withholding or withdrawal of treatment. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0500/chapter_0090/part_0010/section_0060/0500-0090-0010-0060.html
Title: MCA 72-5-501, When health care power of attorney not affected by disability. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0050/part_0050/section_0010/0720-0050-0050-0010.html
Title: MCA 72-38-402, Requirements for creation. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0040/section_0020/0720-0380-0040-0020.html
Title: MCA 72-38-505, Creditor's claim against settlor. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0050/section_0050/0720-0380-0050-0050.html
Title: MCA 72-38-601, Capacity of settlor of revocable trust. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0060/section_0010/0720-0380-0060-0010.html
Title: MCA 72-38-602, Revocation or amendment of revocable trust. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0060/section_0020/0720-0380-0060-0020.html
Title: MCA 72-5-211, Testamentary appointment of guardian of minor -- when effective -- priorities -- notice of appointment. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0050/part_0020/section_0110/0720-0050-0020-0110.html
Title: MCA 72-6-404, Transfer on death deed authorized. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0040/0720-0060-0040-0040.html
Title: MCA 72-6-408, Requirements (transfer on death deed). Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0080/0720-0060-0040-0080.html
Title: MCA 72-3-1101, Collection of personal property by affidavit. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0010/0720-0030-0110-0010.html
Title: MCA 72-16-904, Estate tax imposed. Publisher: Montana State Legislature, Montana Code Annotated 2025. Publication Date: Accessed 2026-09-27. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0160/part_0090/section_0040/0720-0160-0090-0040.html
Title: Montana Estate and Inheritance Tax. Publisher: Montana Department of Revenue. Publication Date: Not listed, accessed 2026-09-27. URL: https://revenue.mt.gov/taxes/fiduciaries/estate-and-inheritance-tax

It is not legal advice.