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Montana Revocable Living Trust
Support GuideMontana19 min read

Montana Revocable Living Trust

A Montana revocable living trust under MCA 72-38-601 to 72-38-606: how to create and fund one, the pour-over will, and its limits.

By Settled Editorial

A Montana revocable living trust holds your property while you live and passes it to the people you name at death without a court case. You keep control and can change or cancel it at any time. It only covers the assets you actually retitle into it, and that is where most Montana trusts come up short.

The governing law is the Montana Uniform Trust Code, Title 72, chapter 38 of the Montana Code Annotated, enacted by Chapter 264 of the 2013 Laws of Montana. Part 6 of that chapter, MCA 72-38-601 through 72-38-606, covers revocable trusts. Every rule below was read against the Montana Code Annotated 2025, the edition in force.

This guide walks through what the trust does, what Montana requires to create one, how to fund it, the pour-over will that backs it up, what happens after you die, and the honest case for skipping it.

What a Montana Revocable Living Trust Does

A revocable living trust is a written arrangement that holds assets for your benefit while you are alive and for your beneficiaries after you die. "Living" means you create it now, during your life. "Revocable" means you can undo it.

Three things follow.

You stay in charge. MCA 72-38-603(1) says that to the extent a trust is revocable by the settlor, the trustee may follow a direction of the settlor that is contrary to the terms of the trust. Section 72-38-603(2) adds that while the trust is revocable, the rights of the beneficiaries are subject to the settlor's control, and the trustee's duties, including the duty to give notice, are owed exclusively to the settlor. Your children have no right to see the trust books while you can still revoke it.

It skips probate for what is inside it. Property titled to the trustee passes under the trust instrument, so your successor trustee takes over without a court appointment.

It does nothing for what is outside it. A signed trust with nothing retitled into it avoids nothing. The funding section below is where the work happens.

Creating One: What Montana Requires

MCA 72-38-401 lists three ways to create a trust: transferring property to a trustee during your life or by will, declaring that you hold identifiable property as trustee, or exercising a power of appointment in favor of a trustee. Most Montana living trusts use the second one. You declare that you hold your own property as trustee.

MCA 72-38-402(1) then sets five conditions. A trust is created only if:

  1. the settlor has capacity to create a trust
  2. the settlor indicates an intention to create the trust
  3. the trust has a definite beneficiary, or is a charitable trust, a trust for the care of an animal, or a trust for a noncharitable purpose
  4. the trustee has duties to perform
  5. the same person is not the sole trustee and sole beneficiary

The fifth one trips up single people. If you name yourself as the only trustee and the only beneficiary, with nobody taking after you, you have not created a trust. Naming beneficiaries who take at your death fixes it.

The capacity standard comes from MCA 72-38-601: the capacity to create, amend, revoke, or add property to a revocable trust, or to direct the trustee, is the same as the capacity to make a will.

Montana asks for a writing. MCA 72-38-407 says a trust is not valid unless it is evidenced by a written instrument signed by the trustee or by the settlor (or by an agent authorized in writing to sign), or unless it arises by operation of law. The creation sections name no notary and no witnesses, and nothing in them requires you to file the trust with a court. Banks and title companies still like a notarized signature, so expect to sign in front of a notary anyway.

Revocation, Amendment, and the October 1, 1989 Line

MCA 72-38-602(1) says that unless the terms of a trust expressly provide that it is irrevocable, the settlor may revoke or amend it. The same subsection draws a date line: the default does not apply to a trust created under an instrument executed before October 1, 1989. An older trust is read under the law that governed it when signed, so check the signature page before you assume a 1985 trust can be revoked.

Section 72-38-602(3) sets two methods. You can revoke or amend by following, in substance, a method the trust names. If the trust names no method, you can use a writing delivered to the trustee that shows clear and convincing evidence of your intent.

Three more subsections belong on your checklist:

  • Married couples with a joint trust. Under 72-38-602(2)(b), for property other than community property, each settlor may revoke or amend the trust as to the portion attributable to that settlor's contribution. Under 72-38-602(2)(c), when fewer than all settlors act, the trustee must promptly tell the others.
  • Agents. Under 72-38-602(5), an agent under a power of attorney can revoke, amend, or distribute only to the extent both the trust terms and the agent's power of attorney expressly authorize it. A general Montana power of attorney will not reach your trust unless both documents say so.
  • Conservators and guardians. Under 72-38-602(6), a conservator, or a guardian where no conservator has been appointed, may exercise those powers only with the approval of the court supervising the case.

Divorce changes the trust automatically. MCA 72-2-814(2)(a) revokes any revocable gift to a former spouse, and any nomination of the former spouse as trustee, in an instrument signed before the divorce, unless the instrument, a court order, or a property settlement says otherwise. Revise the trust after a divorce rather than relying on the statute to do it cleanly.

Funding Is the Half People Skip

Funding means changing title so the trust owns the asset. A trust document signed and left in a drawer moves nothing.

Real estate. Sign a deed conveying the land to yourself as trustee and record it with the county clerk and recorder where the land sits. MCA 70-21-203 says an instrument must be acknowledged, or proved, before it can be recorded, so the deed needs a notary. MCA 15-7-305 requires a realty transfer certificate with every deed, and the recorder will not accept the deed until the certificate arrives.

Bank and brokerage accounts. Retitle each account into the name of the trust. You do not have to hand over the whole trust document. MCA 72-38-1013(1) lets the trustee furnish a certification of trust that states the trust exists and the date it was signed, the settlor, the acting trustee and address, the trustee's powers, whether the trust is revocable and who can revoke it, and the authority of any cotrustees. Section 72-38-1013(4) says the certification need not contain the dispositive terms, and 72-38-1013(8) makes a person who demands the full instrument in bad faith liable for damages.

Household items. MCA 72-38-606 lets a revocable trust refer to a separate written list that disposes of tangible personal property other than money. You must sign the list, and it must describe the items and the recipients with reasonable certainty. You can change the list later without amending the trust.

Retirement accounts and life insurance. These pass by beneficiary designation. Naming a trust as the beneficiary of a retirement account changes how the money is taxed and paid out after death, so talk to the plan administrator or a Montana attorney before you do it.

Vehicles. MCA 61-3-226 lets an owner name a transfer on death beneficiary on the application for certificate of title, which reaches the same result as a trust for that one title. See Montana vehicle transfers.

The Pour-Over Will

Every Montana living trust should come with a companion will, and MCA 72-2-531 makes it work. Subsection (1) lets a will leave property to the trustee of a trust established during the testator's life, and says the gift is not invalid because the trust is amendable or revocable or was amended after the will was signed. Subsection (2) says the property joins the existing trust and is administered under its terms, amendments included.

Subsection (3) carries the trap. Unless the will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse. Revoke the trust without rewriting the will, and the will may have nothing left to say about the property it was written to catch.

The pour-over will still has to be a valid Montana will. MCA 72-2-522(1) requires a writing signed by the testator and by at least two witnesses, and 72-2-522(2) accepts a holographic will when the signature and material portions are in the testator's handwriting. See Montana will requirements.

One limit to keep in mind: property that pours over through the will goes through probate first. If funding was left unfinished, somebody opens a case to move it. The will backs up the trust. It does not replace funding.

What Happens After You Die

The trust becomes irrevocable, and three clocks start.

Sixty days to tell the beneficiaries. MCA 72-38-813(2)(c) says that within 60 days after the trustee learns that a formerly revocable trust has become irrevocable, by the settlor's death or otherwise, the trustee shall notify the qualified beneficiaries of the trust's existence, the identity of the settlor, the right to request a copy of the relevant trust terms, and the right to a trustee's report. Section 72-38-813(2)(b) gives a trustee who accepts the job 60 days to send a name, address, and telephone number. The trust instrument can limit or waive these duties, and 72-38-813(5) exempts a trust that became irrevocable before October 1, 2013.

Three years to contest, or 120 days if the trustee moves first. MCA 72-38-604(1) requires a contest of a trust that was revocable at death to start within the earlier of 3 years after the death, or 120 days after the trustee sent the person a copy of the trust instrument and a notice of the trust's existence, the trustee's name and address, and the time allowed. Section 72-38-604(2) lets the trustee distribute in the meantime without liability, unless the trustee knows of a pending contest, or a potential contestant has given notice and files within 60 days of that notice.

Montana adds a cost to a failed contest. MCA 72-38-605 says that when a contestant challenges the validity of the trust and the court finds it valid, the contestant pays the attorney fees and costs incurred in defending it.

Creditors can still reach the trust. MCA 72-38-505(1)(c) says that after the settlor's death, trust property answers for the settlor's creditors, administration costs, funeral expenses, and statutory allowances to a surviving spouse and children, to the extent the probate estate cannot cover them. MCA 72-6-112 sets the mechanics. A creditor or family member demands that the personal representative act, the trustee of the trust at the center of the estate plan sits second in line for liability under 72-6-112(3)(b), after anyone the will or trust itself names, and 72-6-112(8) requires the proceeding to start within 1 year after death. See Montana creditor claims for the probate side.

The successor trustee's full job is covered in what the successor trustee does.

What a Montana Trust Does Not Do

It does not stop your creditors. MCA 72-38-505(1)(a) says that during the settlor's lifetime, the property of a revocable trust is subject to claims of the settlor's creditors, whether or not the trust has a spendthrift provision.

It does not shield the house from Medicaid. MCA 53-6-167(5)(a) lets the Department of Public Health and Human Services recover from property that passes through joint tenancy, a life estate, a living trust, or other arrangement. Recovery waits while a surviving spouse, or a child who is under 21, blind, or permanently and totally disabled, is alive under 53-6-167(9)(b), and 53-6-167(4)(b) gives the department 3 years from the later of death or the closing of the estate to sue a recipient of the property.

It does not save a Montana death tax. Montana has no estate tax for deaths after 2004, according to the Montana Department of Revenue, so there is no state estate tax for a trust to avoid.

It does not replace a power of attorney or a health care directive. A trustee manages trust property. Somebody still needs authority over accounts outside the trust and over medical decisions.

When a Trust Is Worth It in Montana

Montana already gives you low-cost ways to move property without probate:

  • One house. A Montana transfer on death deed passes real estate at death under MCA 72-6-401 and the sections after it, for the cost of recording one deed.
  • A small estate. MCA 72-3-1101(1)(a) lets a successor collect personal property by affidavit 30 days after death when the probate estate, less liens and encumbrances, does not exceed $100,000. See the Montana small estate affidavit.
  • Accounts and vehicles. Payable-on-death designations and the vehicle beneficiary designation under 61-3-226 reach the same result for those assets.

A trust earns its cost when you own land in more than one state, want a successor to manage property if you become incapacitated, have a beneficiary who should receive money in stages, or want one document to control everything. For the full comparison, see other ways to avoid probate, and for how a trust fits with a will, a power of attorney, and a health care directive, see the rest of a Montana plan.

Setting Up a Montana Living Trust: Step by Step

  1. List every asset and how it is titled today.
  2. Pick a successor trustee and a backup.
  3. Name beneficiaries who take at your death, so you are not the sole trustee and sole beneficiary under 72-38-402(1)(e).
  4. Sign the trust instrument. MCA 72-38-407 requires a signed writing.
  5. Sign a pour-over will that meets 72-2-522.
  6. Deed any Montana land to yourself as trustee, have the deed acknowledged, and record it with a realty transfer certificate.
  7. Retitle bank and brokerage accounts, using a certification of trust under 72-38-1013.
  8. Sign a separate list for household items under 72-38-606 if you want one.
  9. Review beneficiary designations on retirement accounts and life insurance.
  10. Sign a power of attorney that says whether the agent may amend or fund the trust, as 72-38-602(5) requires.

When To Call a Montana Attorney

Talk to a licensed Montana attorney when:

  • Medicaid long-term care is likely, because 53-6-167(5)(a) names the living trust
  • you own land outside Montana
  • a blended family or a prior divorce complicates who should take
  • a beneficiary has a disability, a creditor problem, or an addiction that calls for staged payments
  • a trust already exists and nobody knows which assets were ever retitled into it
  • the trust was signed before October 1, 1989, so the revocability default in 72-38-602(1) does not reach it

Frequently Asked Questions

Where is the Montana law on revocable living trusts?

In the Montana Uniform Trust Code, Title 72, chapter 38 of the Montana Code Annotated, enacted by Chapter 264 of the 2013 Laws of Montana. MCA 72-38-101 gives the short title. Part 6 covers revocable trusts: 72-38-601 sets the capacity rule, 72-38-602 covers revocation and amendment, 72-38-603 covers the settlor's powers, and 72-38-604 limits the time to contest the trust after the settlor dies.

Does a Montana living trust have to be in writing or notarized?

It has to be evidenced in writing or arise by operation of law. MCA 72-38-407 says a trust is not valid unless evidenced by a written instrument signed by the trustee or the settlor, or by an agent authorized in writing, or by operation of law. The creation sections, 72-38-401, 72-38-402 and 72-38-407, name no notary or witness requirement. The deed that moves land into the trust is a different matter: MCA 70-21-203 requires a deed to be acknowledged before the county clerk and recorder can record it.

Is a Montana trust revocable by default?

Yes, for trusts signed on or after October 1, 1989. MCA 72-38-602(1) says that unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend it. The same subsection says the rule does not apply to a trust created under an instrument executed before October 1, 1989, so check the signature date on an older trust.

What happens to a pour-over will if I revoke the trust?

The gift to the trust lapses unless the will says otherwise. MCA 72-2-531(3) says that unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse. If you revoke the trust, rewrite the will at the same time.

Does a Montana revocable trust protect assets from creditors?

No. MCA 72-38-505(1)(a) says that during the settlor's lifetime the property of a revocable trust is subject to claims of the settlor's creditors, whether or not the trust has a spendthrift provision. After death, 72-38-505(1)(c) makes the same property answer for creditors, administration costs, funeral expenses and statutory allowances to a surviving spouse and children, to the extent the probate estate cannot cover them.

Does a Montana living trust protect a house from Medicaid estate recovery?

No. MCA 53-6-167(5)(a) lets the Department of Public Health and Human Services recover from property that passes to survivors or beneficiaries through joint tenancy, a life estate, a living trust, or other arrangement. The department may not recover while a surviving spouse, or a child who is under 21, blind, or permanently and totally disabled, is alive, under 53-6-167(9)(b).

How long does someone have to contest a Montana living trust?

MCA 72-38-604(1) gives a person the earlier of 3 years after the settlor's death, or 120 days after the trustee sent that person a copy of the trust instrument and a notice of the trust's existence, the trustee's name and address, and the time allowed to sue. Under 72-38-605, a contestant who loses pays the attorney fees and costs of defending the trust.

Does a Montana trust count toward the $100,000 small estate affidavit limit?

No. MCA 72-3-1101(1)(a) measures the value of the probate estate, less liens and encumbrances, against $100,000. Property titled to the trustee passes under the trust instrument and stays outside the probate estate, so a funded trust can leave only a small probate estate behind.

Sources:

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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.

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