How to Avoid Probate in Montana

In Montana, an asset skips probate when a recorded deed, a title, or a beneficiary form already says who takes it. That covers land under a recorded transfer on death deed, property held in joint tenancy with right of survivorship, payable on death bank accounts, securities registered in beneficiary form, retirement plans and life insurance with a living beneficiary, a vehicle with a beneficiary designation on its title, and anything already titled to a living trust.

Everything else goes to the district court. Montana has no separate probate court, and MCA 72-3-102 says a will must be declared valid by an order of informal probate by the clerk or an adjudication of probate by the court before it can prove the transfer of any property. So a will alone never keeps an estate out of court.

MCA 72-6-111(1) is the umbrella rule. It declares a provision for a transfer at death in an insurance policy, a pension or retirement plan, an account agreement, a security, a trust, a deed of gift, a transfer on death deed, a vehicle beneficiary designation under 61-3-226, or a similar written instrument to be nontestamentary. That one word is what moves an asset outside the probate estate. Here is how each tool works in Montana, the step that makes it effective, and the catch that comes with it.

Start With What Montana Probate Costs

Avoiding probate in Montana buys time, privacy, and a simpler handoff. It does not dodge a percentage fee or a death tax, because Montana charges neither.

• No fee schedule for the personal representative. MCA 72-3-631(1) entitles a personal representative to reasonable compensation for services, with no percentage table in the statute.
• No estate or inheritance tax. The Montana Department of Revenue states that Montana no longer collects estate or inheritance taxes and does not have an estate tax for deaths after 2004.

So the case for each tool below rests on speed, privacy, out-of-state land, and control. Weigh it on those terms.

The Transfer On Death Deed For Land

The house is the asset that sends most Montana families to the district court, and Montana has a direct answer. The Uniform Real Property Transfer on Death Act sits at MCA 72-6-401 through 72-6-418, enacted by Chapter 313 of the 2019 Laws of Montana. MCA 72-6-404 lets an individual transfer property to one or more beneficiaries effective at death, and 72-6-415 prints an optional form.

The rules that decide whether it works:

• Record it before you die. MCA 72-6-408 requires the deed to carry the elements and formalities of a recordable inter vivos deed, to state that the transfer occurs at your death, and to be recorded before your death with the county clerk and recorder of the county where the property is located. An unrecorded deed does nothing.
• Nobody has to accept it. Under 72-6-409 the deed works without notice, delivery, acceptance, or consideration.
• It changes nothing while you live. MCA 72-6-411 says the deed does not affect your right to sell or mortgage, your creditors, or your eligibility for public assistance, and creates no interest in the beneficiary.
• Revoke it on paper. MCA 72-6-410 accepts only a later transfer on death deed, a recorded instrument of revocation, or an inter vivos deed that expressly revokes it, and 72-6-410(3) bars revoking a recorded deed by a revocatory act on the deed.
• A joint owner comes first. Under 72-6-412(3), if other joint owners survive you, the property goes to them, and the deed takes effect only for the last surviving joint owner.
• Name a backup. MCA 72-6-412(1)(b) makes the beneficiary's interest contingent on surviving you, and a beneficiary who dies first lapses.

Older Montana deeds count too. MCA 72-6-417 treats a beneficiary deed executed and recorded before October 1, 2019, and valid under the law at the time it was recorded, as a transfer on death deed. Execution, recording, revocation, and the 2025 insurance carry-over rule are walked through on a Montana transfer on death deed.

Joint Tenancy Has To Be Written Into The Deed

Many owners assume a house deeded to a married couple passes to the survivor automatically. In Montana it does not, unless the deed says so.

MCA 70-1-314 says every interest created in favor of several persons in their own right, including husband and wife, is an interest in common unless acquired in partnership for partnership purposes or declared in its creation to be a joint interest. MCA 70-1-307 defines a joint interest as one expressly declared in the will or transfer to be a joint tenancy. Pull the recorded deed and read the wording before you count on survivorship.

When a joint tenant dies, MCA 72-16-501 terminates that owner's interest. The survivor then clears the record. Where the owner left no property that requires a personal representative, 72-16-502 and 72-16-503 direct a person with an interest in the land to record, with the clerk and recorder of each county where any part of it sits, the document described in 7-4-2613(1)(c): an acknowledged statement that the holder of the joint tenancy or life estate interest has died and the interest is terminated, with a legal description of the property. The same filing clears a life estate that ended at death.

Joint tenancy costs nothing to create. It also hands the co-owner present ownership, exposes the property to that person's creditors and divorce, and cuts out anyone you did not name. Use it on purpose.

Payable On Death Bank Accounts

A POD designation at a bank or credit union names who receives the balance at death. Montana's multiple-party account rules sit at MCA 72-6-201 through 72-6-228.

• The beneficiary has no rights while you live. MCA 72-6-211(3) says a POD beneficiary has no right to sums on deposit during the lifetime of any party.
• The beneficiary takes at death. Under 72-6-212(2)(b), on the death of the sole party or the last surviving party, sums on deposit belong to the surviving beneficiary or beneficiaries, in equal shares with no survivorship between them afterward. If no beneficiary survives, the money goes to the estate.
• A will cannot override it. MCA 72-6-213(4) says a right of survivorship from the account terms, from 72-6-212, or from a POD designation may not be altered by will.
• It stays out of probate. MCA 72-6-214 makes the transfer nontestamentary.

Watch the joint-account trap. Under 72-6-212(3), an account that by its terms carries no right of survivorship passes the decedent's share through the estate, and a POD designation on that kind of multiple-party account is ineffective. Ask the bank how each account is titled.

Securities Registered In Beneficiary Form

Montana adopted the Uniform TOD Security Registration Act at MCA 72-6-301 through 72-6-311. A brokerage account or security registered in beneficiary form passes under 72-6-307 to the beneficiaries who survive all owners, and the firm reregisters it on proof of death.

MCA 72-6-302 limits entry to sole ownership by one individual or ownership by two or more with right of survivorship, so tenants in common are shut out. MCA 72-6-306 gives the designation no effect on ownership until death and lets the owner change or cancel it without the beneficiary's consent. If no beneficiary survives all owners, 72-6-307 sends the security to the estate of the last owner to die. Name a contingent beneficiary wherever the firm allows one.

Retirement Accounts And Life Insurance

A 401(k), IRA, pension, or life insurance policy pays the beneficiary on the form the plan or insurer holds. MCA 72-6-111(1) lists insurance policies, pension plans, individual retirement plans, and employee benefit plans among the nontestamentary instruments, so the will does not reach them.

This is where Montana families end up in probate by accident. A blank form, a stale form, or a beneficiary who died first can drop the money into the estate. Review every designation after a marriage, a divorce, a birth, or a death. MCA 72-6-111(2) adds that the section does not limit the rights of creditors under other Montana law.

Vehicles, Campers, And Boats

Montana lets an owner name a beneficiary on a vehicle title. MCA 61-3-226, enacted in 2021 and last amended in 2025, lets the owner or joint owners of a vehicle or vessel arrange a nonprobate transfer by completing the beneficiary designation on the application for certificate of title prescribed by the department.

• The designation is perfected when submitted with an application for certificate of title and carrying the required information and signatures, under 61-3-226(3)(a).
• A will does not invalidate a perfected designation, under 61-3-226(3)(b).
• After the death, the beneficiary presents proof of death and identification to the department, the county treasurer's office, or an authorized agent, under 61-3-226(5).
• "Vehicle" in 61-3-226(7) includes a motor vehicle, camper, manufactured home, or mobile home that has not been declared an improvement to real property.

Two owners on a title is a different arrangement. MCA 61-3-202(4) presumes joint ownership with right of survivorship, and not transfer on death, where more than one owner is listed. The steps for naming a TOD beneficiary on a vehicle title are on the Montana vehicles page. We do not print Motor Vehicle Division form numbers here because we could not read them at the division's own site.

The Revocable Living Trust

A revocable living trust holds assets while you live and passes them to your beneficiaries at death with no court case. Montana's trust law is the Montana Uniform Trust Code, Title 72, chapter 38, and the revocable-trust rules sit at MCA 72-38-601 through 72-38-606.

• Capacity. MCA 72-38-601 sets the capacity to create, amend, revoke, or add property to a revocable trust at the same level required to make a will.
• Revocable by default. Under 72-38-602(1), unless the trust terms expressly say it is irrevocable, the settlor may revoke or amend it. That default does not apply to a trust created under an instrument executed before October 1, 1989.
• How to change it. MCA 72-38-602(3) allows revocation or amendment by following, in substance, a method the trust names, or, where it names none, by a writing delivered to the trustee showing clear and convincing evidence of intent.
• Your agent needs express authority. Under 72-38-602(5), an agent under a power of attorney may revoke, amend, or distribute only to the extent both the trust and the power expressly authorize it.
• A short clock on challenges. MCA 72-38-604(1) requires a contest to a trust that was revocable at death within the earlier of 3 years after the death or 120 days after the trustee sends the person a copy of the trust with notice of its existence, the trustee's name and address, and the time allowed.

A trust avoids probate only for assets you actually retitle into it. An unfunded trust avoids nothing. For the setup and the funding checklist, read a revocable living trust in Montana.

What Does Not Avoid Probate

Two beliefs cost Montana families the most.

The first is that a will keeps you out of court. MCA 72-3-102 says the opposite: a will must be declared valid by an order of informal probate by the clerk or an adjudication of probate by the court to prove the transfer of any property.

The second is that the small estate affidavit is a planning tool. It is a shortcut after a death, with limits. MCA 72-3-1101 lets a successor collect debts, tangible personal property, and instruments by affidavit 30 days after the death, where the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000, and no application or petition for appointment of a personal representative is pending or has been granted anywhere. Two points follow. The measure is the probate estate, so assets that pass by the tools above do not count toward the $100,000. And the affidavit moves personal property only, so a house left in the probate estate still needs a court case. The requirements are on the $100,000 small estate affidavit page.

Probate avoidance is also only one part of a plan. Incapacity, guardianship, and the will itself are covered on the rest of a Montana plan, and email, cloud storage, and social media accounts follow their own statute, covered on online accounts and digital assets.

Where Montana Pulls Nonprobate Property Back

No tool on this page is absolute. Montana wrote three claw-backs into the code.

Creditors and family allowances, one year. MCA 72-6-112 makes a transferee of a nonprobate transfer liable to the probate estate for allowed claims and statutory allowances to the spouse and children, to the extent the estate falls short, capped at the value that transferee received. Liability runs first to anyone the will or another instrument names, then to the trustee of the trust at the center of the plan, then to everyone else in proportion. A proceeding needs a written demand to the personal representative from the surviving spouse, a child, or a creditor, and 72-6-112(8) requires it within 1 year after the death. MCA 72-6-414 applies the same rule to a transfer on death deed beneficiary, and 72-6-228 repeats it for bank accounts.

The joint tenancy exception. MCA 72-6-112(1) excludes a survivorship interest in a joint tenancy of real estate from the definition of a nonprobate transfer. So that claw-back does not reach land held in joint tenancy, while it does reach land under a transfer on death deed.

Medicaid estate recovery. MCA 53-6-167(5)(a) defines property received by distribution or survival to include assets passing through joint tenancy, tenancy in common, right of survivorship, a conveyance subject to a life estate, a living trust, or other arrangement. Under 53-6-167(9)(b) the department may not recover while there is a surviving spouse or a surviving child who is under 21, blind, or permanently and totally disabled, and 53-6-167(4)(b) gives it 3 years from the later of the death or the closing of the estate to sue a person who received the property. Anyone who has received or may need Medicaid long-term care should speak with a Montana elder law attorney before retitling anything.

A Montana Checklist

1. Record a transfer on death deed for Montana land with the county clerk and recorder, and name an alternate beneficiary. (72-6-408, 72-6-412.)
2. Pull every jointly owned deed and confirm it says joint tenancy; Montana presumes tenancy in common otherwise. (70-1-314.)
3. Add or refresh POD beneficiaries on every bank and credit union account. (72-6-212.)
4. Register brokerage accounts in beneficiary form and name a contingent beneficiary. (72-6-302, 72-6-307.)
5. Review beneficiary designations on retirement plans and life insurance after every family change. (72-6-111.)
6. Add a beneficiary designation the next time you apply for a vehicle or boat title. (61-3-226.)
7. Fund a revocable living trust where privacy, land in another state, or control over distributions justifies the setup. (72-38-602.)
8. Keep the will consistent with every form, remembering that the POD form beats the will. (72-6-213.)

When To Call A Montana Attorney

Most of this list is paperwork you can handle with the bank, the broker, and the county clerk and recorder. Call a licensed Montana attorney when:

• Medicaid long-term care is on the table, because 53-6-167(5)(a) reaches almost every tool here
• the land sits in more than one state or more than one Montana county
• a blended family means the deed, the forms, and the will point at different people
• a trust already exists and nobody can say which assets were ever retitled into it
• someone has already died and the family is choosing between the affidavit and a probate case

Confirm anything that affects a particular property with the county clerk and recorder where it sits, the Clerk of District Court handling the estate, or a licensed Montana attorney before you sign or record.

Frequently Asked Questions

Does Montana have a transfer on death deed for real estate?

Yes. Montana adopted the Uniform Real Property Transfer on Death Act as Title 72, chapter 6, part 4, sections 72-6-401 through 72-6-418, enacted by Chapter 313 of the 2019 Laws of Montana. MCA 72-6-404 lets an individual transfer property to one or more beneficiaries effective at death by a transfer on death deed. Under 72-6-408 the deed must carry the elements and formalities of a properly recordable inter vivos deed, must state that the transfer occurs at the transferor's death, and must be recorded before the transferor's death with the county clerk and recorder of the county where the property is located. MCA 72-6-415 prints an optional form.

Is Montana real estate owned by a married couple automatically joint tenancy?

No. MCA 70-1-314 says every interest created in favor of several persons in their own right, including husband and wife, is an interest in common unless acquired in partnership for partnership purposes or declared in its creation to be a joint interest. MCA 70-1-307 defines a joint interest as one expressly declared in the will or transfer to be a joint tenancy. So the deed has to say joint tenancy, or the survivor inherits nothing by survivorship and the deceased owner's share goes through probate.

Can a Montana will change a payable on death account?

No. MCA 72-6-213(4) says a right of survivorship arising from the express terms of the account, from 72-6-212, or from a POD designation may not be altered by will. The form on file at the bank or credit union controls, and 72-6-214 makes the transfer nontestamentary, so it passes outside probate.

Does a Montana will avoid probate?

No. MCA 72-3-102 says that, except as provided in 72-3-1101, a will must be declared valid by an order of informal probate by the clerk or an adjudication of probate by the court to be effective to prove the transfer of any property or to nominate an executor. A will tells the court who gets what. It does not keep the estate out of court.

Can creditors reach property that passed outside probate in Montana?

Yes, for one year. MCA 72-6-112 makes a transferee of a nonprobate transfer liable to the probate estate for allowed claims and statutory allowances to the spouse and children, to the extent the estate is insufficient, capped at the value the transferee received. A proceeding needs a written demand to the personal representative from the surviving spouse, a child, or a creditor, and 72-6-112(8) requires it within 1 year after the death. MCA 72-6-414 applies the same rule to a transfer on death deed beneficiary. A survivorship interest in a joint tenancy of real estate is excluded from the definition of a nonprobate transfer in 72-6-112(1).

Does Montana Medicaid estate recovery reach a living trust or joint tenancy?

Yes. MCA 53-6-167(5)(a) defines property received by distribution or survival to include assets passing through joint tenancy, tenancy in common, right of survivorship, conveyance subject to a life estate, living trust, or other arrangement. Under 53-6-167(9)(b) the department may not recover while there is a surviving spouse or a surviving child who is under 21, blind, or permanently and totally disabled, and under 53-6-167(4)(b) an action against a recipient of that property must start within 3 years of the later of the death or the closing of the estate.

Can a Montana vehicle pass to a beneficiary without probate?

Yes. MCA 61-3-226 lets the owner or joint owners of a vehicle or vessel name a beneficiary by completing the beneficiary designation on the application for certificate of title prescribed by the department. The designation is perfected when it is submitted with an application for certificate of title, and a will does not invalidate it. After the death the beneficiary presents proof of death and identification to the department, the county treasurer's office, or an authorized agent.

This guide is general information about Montana estates. Confirm anything that affects your situation with the Clerk of District Court for your county, the county clerk and recorder where the property sits, or a licensed Montana attorney.

Sources:

• Title: MCA 72-6-111, Nonprobate transfers on death. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 3, Ch. 130, L. 2021. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0010/section_0110/0720-0060-0010-0110.html
• Title: MCA 72-6-112, Liability of nonprobate transferees for creditor claims and statutory allowances. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 82, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0010/section_0120/0720-0060-0010-0120.html
• Title: MCA 72-6-404, Transfer on death deed authorized. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 87, Ch. 313, L. 2019. 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. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 91, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0080/0720-0060-0040-0080.html
• Title: MCA 72-6-410, Revocation by instrument authorized -- revocation by act not permitted. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 93, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0100/0720-0060-0040-0100.html
• Title: MCA 72-6-412, Effect of transfer on death deed at transferor's death. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 2, Ch. 296, L. 2025. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0120/0720-0060-0040-0120.html
• Title: MCA 72-6-414, Liability for creditor claims and statutory allowances. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 97, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0140/0720-0060-0040-0140.html
• Title: MCA 72-6-417, Prior executed and recorded beneficiary deed. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 100, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0040/section_0170/0720-0060-0040-0170.html
• Title: MCA 70-1-314, Interest in common -- how created. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: R.C.M. 1947, 67-313. URL: https://mca.legmt.gov/bills/mca/title_0700/chapter_0010/part_0030/section_0140/0700-0010-0030-0140.html
• Title: MCA 72-16-503, Filings required when holder of nonprobate interest in real property has died. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 2, Ch. 412, L. 2001. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0160/part_0050/section_0030/0720-0160-0050-0030.html
• Title: MCA 7-4-2613, Documents subject to recording. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 1, Ch. 412, L. 2001. URL: https://mca.legmt.gov/bills/mca/title_0070/chapter_0040/part_0260/section_0130/0070-0040-0260-0130.html
• Title: MCA 72-6-212, Rights at death. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 91, Ch. 494, L. 1993. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0020/section_0120/0720-0060-0020-0120.html
• Title: MCA 72-6-213, Alteration of rights. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 4, Ch. 279, L. 1997. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0020/section_0130/0720-0060-0020-0130.html
• Title: MCA 72-6-307, Ownership on death of owner. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 109, Ch. 494, L. 1993. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0060/part_0030/section_0070/0720-0060-0030-0070.html
• Title: MCA 61-3-226, Certificate of title -- transfer on death -- definition. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 13, Ch. 47, L. 2025. URL: https://mca.legmt.gov/bills/mca/title_0610/chapter_0030/part_0020/section_0260/0610-0030-0020-0260.html
• Title: MCA 61-3-202, Certificate of title -- issuance -- contents -- joint ownership. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 6, Ch. 395, L. 2025. URL: https://mca.legmt.gov/bills/mca/title_0610/chapter_0030/part_0020/section_0020/0610-0030-0020-0020.html
• Title: MCA 72-38-602, Revocation or amendment of revocable trust. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 74, Ch. 264, L. 2013. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0060/section_0020/0720-0380-0060-0020.html
• Title: MCA 72-38-604, Limitation on action contesting validity of revocable trust -- distribution of trust property. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: En. Sec. 76, Ch. 264, L. 2013. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0380/part_0060/section_0040/0720-0380-0060-0040.html
• Title: MCA 72-3-102, Necessity of order of probate of will. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 56, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0010/section_0020/0720-0030-0010-0020.html
• Title: MCA 72-3-1101, Collection of personal property by affidavit. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 1, Ch. 453, L. 2023. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0010/0720-0030-0110-0010.html
• Title: MCA 72-3-631, Compensation of personal representative. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 74, Ch. 313, L. 2019. URL: https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0060/section_0310/0720-0030-0060-0310.html
• Title: MCA 53-6-167, Recovery of medicaid benefits after recipient's death. Publisher: Montana Legislature, Montana Code Annotated 2025. Publication Date: amd. Sec. 3, Ch. 153, L. 2009. URL: https://mca.legmt.gov/bills/mca/title_0530/chapter_0060/part_0010/section_0670/0530-0060-0010-0670.html
• Title: Estate and Inheritance Tax. Publisher: Montana Department of Revenue. Publication Date: Not listed. URL: https://revenue.mt.gov/taxes/fiduciaries/estate-and-inheritance-tax

It is not legal advice.