Montana Small Estate Affidavit: The House Counts Toward $100,000 but Cannot Pass By It

Settled Estate puts the Montana small estate affidavit limit at $100,000, subject to conditions this page sets out in full. Real property cannot pass this way. Last verified September 2026.

Montana has one small-estate dollar figure and two shortcut routes. The affidavit measures everything in the probate estate, land included, and then moves only the personal property.

Based on Mont. Code Ann. § 72-3-1101

By Settled Estate EditorialPublished: January 15, 2026Updated: May 31, 2026

Does Montana Have a Small Estate Affidavit?

Yes. Mont. Code Ann. § 72-3-1101 lets a successor collect the decedent's personal property with a sworn affidavit once 30 days have passed since the death, provided the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000, and no application or petition to appoint a personal representative is pending or has been granted in any jurisdiction. The affidavit goes to whoever holds the property, such as a bank, an employer or a transfer agent, and is never filed with a court. The catch is real estate. A house or land in the probate estate counts toward the $100,000 at its value net of the mortgage, but the affidavit reaches only debts owed to the decedent, tangible personal property and instruments evidencing a debt, obligation, stock or chose in action, and Montana has no separate real-property affidavit. So an estate under the figure that includes land can collect its accounts and car this way and still needs another route for the land. A will does not close the route. The $100,000 figure applies to deaths on or after October 1, 2023; before that date it was $50,000.

Do you qualify?

Qualifying threshold: $100,000 or less, measured on the value of the probate estate, wherever located, less liens and encumbrances (Mont. Code Ann. § 72-3-1101(1)(a)), for deaths on or after October 1, 2023. Real property is inside that measure at its value net of the mortgage, even though the affidavit cannot transfer it.Montana's figure is a net, whole-probate-estate test. Add up everything in the probate estate, wherever it sits, then subtract liens and encumbrances. Nothing is excluded by asset class, so the house counts: a $300,000 house with a $250,000 mortgage contributes $50,000. Property that passes outside probate, such as joint tenancy with right of survivorship, a payable-on-death account, life insurance with a living named beneficiary, or land covered by a transfer on death deed recorded before the death, is not part of the probate estate. For a death before October 1, 2023, the figure in force at the death was $50,000, and the 2023 act does not say which figure applies when an older death is settled now, so check with the bank or a Montana lawyer before relying on the higher figure. The $5,000 in § 72-3-1101(2) is a separate Department of Revenue refund of unclaimed property, not a second small-estate limit.
Waiting period: 30 days after the death (Mont. Code Ann. § 72-3-1101(1)(b)). The route closes once anyone applies to be appointed personal representative, in Montana or in any other state, and it stays closed after an appointment is granted (§ 72-3-1101(1)(c)).
Court filing fee: $0, because nothing is filed. The successor presents the affidavit to the bank, employer or other holder, and no court fee attaches. The affidavit is signed under oath, so expect a notary fee. Budget separately for certified death certificates, which cost $16 each from the Montana Department of Public Health and Human Services Office of Vital Records or a county clerk and recorder (Mont. Code Ann. § 50-15-111(2) and the department's fee schedule effective September 21, 2024).
Attorney: Not typically neededNo statutory requirement. Mont. Code Ann. § 72-3-1101 is written so a successor can sign and present the affidavit without counsel, and the State Law Library publishes a free affidavit packet. Advice earns its cost where the estate sits near $100,000, where the death was before October 1, 2023, where the estate includes land that still has to pass another way, where more than one person claims to be the successor, or where the decedent received Medicaid and the state may present a recovery claim.
Real estate: Not covered by this procedureReal estate counts toward the Montana limit but cannot be transferred by the affidavit. Mont. Code Ann. § 72-3-1101(1)(a) measures the whole probate estate, less liens and encumbrances, with no carve-out for land, while the property the affidavit reaches is a debt owed to the decedent, tangible personal property, or an instrument evidencing a debt, obligation, stock or chose in action. Montana has no separate real-property affidavit. Land in the probate estate needs another route: an informal or formal probate, or the summary administration procedure in § 72-3-1103 once a personal representative is appointed. Land that passed outside probate needs only a recording: a transfer on death deed under Mont. Code Ann. §§ 72-6-401 to 72-6-418 works only if it was recorded before the death (§ 72-6-408(3)), and a joint tenancy or life estate is ended by recording a statement of death with the county clerk and recorder under § 72-16-503.

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Main Requirements

Probate Estate of $100,000 or Less, Net of Liens

Mont. Code Ann. § 72-3-1101(1)(a) caps the value of the probate estate, wherever located, less liens and encumbrances, at $100,000 for deaths on or after October 1, 2023. Real property in the probate estate counts toward it at its value net of the mortgage.

30 Days Have Passed Since the Death

Required by § 72-3-1101(1)(b).

No Personal Representative Application Anywhere

Section 72-3-1101(1)(c) requires that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction, in Montana or elsewhere.

The Signer Is Entitled to the Property

Section 72-3-1101(1)(d) requires the claiming successor to be entitled to payment or delivery of the property, under the will or under intestacy.

Personal Property Only

The affidavit reaches debts owed to the decedent, tangible personal property, and instruments evidencing a debt, obligation, stock or chose in action. It cannot transfer land, and Montana has no separate real-property affidavit.

A Will Does Not Close the Route

Mont. Code Ann. § 72-3-102 makes a will effective to transfer property only once probated, with an express exception for the small estate affidavit, so the route is open whether or not the decedent left a will.

Older Deaths Used a $50,000 Figure

For a death before October 1, 2023 the figure in force at the death was $50,000. The 2023 act that raised it has no transition clause, so confirm which figure the holder will accept.

Available Small-Estate Options

Small Estate Affidavit, Mont. Code Ann. § 72-3-1101

Limit: Probate estate, wherever located, less liens and encumbrances, at $100,000 or less for deaths on or after October 1, 2023. Collects debts owed, tangible personal property and instruments; cannot transfer land
Real Estate: Not included
Timeline: Usable 30 days after the death, then as long as each holder takes to pay or deliver
Typical Fee: $0. Never filed. Notary fee and certified death certificates at $16 each

Summary Administration, Mont. Code Ann. §§ 72-3-1103 and 72-3-1104

Limit: No dollar figure. The estate, less liens, must not exceed the $22,500 homestead allowance, up to $15,000 of exempt property, the family allowance, administration costs, reasonable funeral expenses and last-illness medical and hospital bills
Real Estate: Can be included
Timeline: Needs an appointed personal representative and an inventory and appraisal, then distribution without notice to creditors and a sworn closing statement
Typical Fee: $100 to open the estate at the Clerk of District Court

Informal Probate, Mont. Code Ann. §§ 72-3-211 to 72-3-225

Limit: No dollar threshold. The ordinary route for an uncontested estate, including one with land
Real Estate: Can be included
Timeline: Commonly 7 to 12 months; the closing statement cannot be filed earlier than 6 months after appointment
Typical Fee: $100, the same in all 56 counties

Under $100,000 does not mean the house can skip probate.

The most common Montana mistake is reading the $100,000 figure as a promise that the whole estate can pass by affidavit. It cannot. Mont. Code Ann. § 72-3-1101 counts real property in the probate estate toward the limit and then moves only personal property, and Montana has no real-property affidavit. An estate with $20,000 in the bank and a house with $70,000 of equity qualifies for the affidavit on the bank account and still needs a probate or summary administration to pass the house, unless the house was covered by a transfer on death deed recorded before the death or held in joint tenancy. Add the house to the bank balance before deciding whether the affidavit is open at all, because the $100,000 test is applied to both together.

Step-by-Step Process

Add Up the Whole Probate Estate, House Included

Mont. Code Ann. § 72-3-1101(1)(a) measures the value of the probate estate, wherever located, less liens and encumbrances. Count solely owned bank and brokerage accounts, vehicles, household goods, money owed to the decedent, and real estate at its value minus the mortgage. Leave out property that passes another way and is not in the probate estate, such as joint tenancy, payable-on-death and transfer-on-death accounts, life insurance or retirement accounts with a living named beneficiary, and land covered by a recorded transfer on death deed.

Check the Figure Against $100,000

If the death was on or after October 1, 2023 and the net total is $100,000 or less, the affidavit is available for the personal property. If the death was before October 1, 2023, the figure in force at that time was $50,000, and the statute does not say which figure applies now, so treat a total between the two as a question for the bank or a Montana lawyer.

Wait 30 Days After the Death

Covered in the "Do you qualify?" checklist at the top of this page.

Confirm Nobody Has Applied to Be Personal Representative

Mont. Code Ann. § 72-3-1101(1)(c) requires that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction. That reaches other states too. Ask the Clerk of District Court in the county where the decedent lived, and any family member who might have filed, before signing.

Confirm You Are the Person Entitled to the Property

Only a successor entitled to payment or delivery of the property can sign (§ 72-3-1101(1)(d)). A will does not close the route: § 72-3-102 says a will is effective to transfer property only once probated, but makes an express exception for the affidavit. Entitlement comes from the will or from Montana's intestacy rules.

Sign the Affidavit Under Oath

The affidavit states each fact in § 72-3-1101(1). The Montana State Law Library publishes an "Affidavit for Collection of Personal Property Packet" on its End of Life forms page. The library's forms carry no form numbers, so no form number applies.

Present It to Each Holder, and Plan Separately for Land

Give the signed affidavit and a death certificate to each bank, employer or company holding property. A holder who pays or delivers on the affidavit is discharged as if it had dealt with a personal representative, and a holder who refuses can be compelled in a court proceeding (§ 72-3-1102). A transfer agent must change the registration of a security on presentation of the affidavit (§ 72-3-1101(3)). Any Montana real estate in the probate estate stays where it is until a probate or summary administration moves it.

County Note: The affidavit never reaches a courthouse, and the courthouse would not vary anyway. Montana probate is heard by the district court of the county in all 56 counties, and the court fee schedule is statewide, so no Montana county is cheaper or stricter than another. What is local is the Clerk of District Court in the county where the decedent lived, if the estate later needs a probate case, and the county clerk and recorder, if land has to be recorded.

FAQ: Montana Small Estate Affidavit

Does Montana have a small estate affidavit?

Yes. Mont. Code Ann. § 72-3-1101 lets a successor collect the decedent's personal property with a sworn affidavit when 30 days have passed since the death, the value of the probate estate, wherever located, less liens and encumbrances, is $100,000 or less, and no application or petition for a personal representative is pending or granted anywhere. The affidavit is presented to whoever holds the property and is not filed with a court.

What is the Montana small estate limit?

$100,000, measured net of liens and encumbrances across the whole probate estate, wherever located, for deaths on or after October 1, 2023. 2023 Mont. Laws ch. 453 (Senate Bill 286) raised it from $50,000, which had applied since 2005. It is not indexed for inflation and changes only by amendment.

Does the house count toward the Montana limit?

Yes, at its value net of the mortgage. Section 72-3-1101(1)(a) measures the probate estate with no exclusion for real estate, so a $300,000 house with a $250,000 mortgage adds $50,000. But the affidavit cannot transfer the house. It reaches only personal property, and Montana has no real-property affidavit, so land in the probate estate needs a probate or the summary administration procedure even when the total is under $100,000.

Is there a waiting period for a Montana small estate affidavit?

30 days from the date of death under § 72-3-1101(1)(b). After that, the route stays open until someone applies to be appointed personal representative, in Montana or any other state.

Does a will stop you from using the Montana affidavit?

No. Mont. Code Ann. § 72-3-102 says a will is effective to transfer property only once probated, but it makes an express exception for the small estate affidavit. The signer must be the person entitled to the property under the will or under intestacy.

How much does a Montana small estate affidavit cost?

No court fee, because it is never filed. Expect a notary fee for signing, and certified death certificates at $16 each from the Office of Vital Records or a county clerk and recorder. By comparison, opening a Montana probate costs $100 at the Clerk of District Court in every county.

Official Forms, Sources, and VerificationOfficial references used for this page

Mont. Code Ann. § 72-3-1101, Collection of personal property by affidavitMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-3-1102, Effect of affidavitMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-3-1103, Small estates, summary administration procedureMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-3-1104, Small estates, closing by sworn statement of personal representativeMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-1-103, General definitionsMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-2-412, Homestead allowanceMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 72-2-413, Exempt propertyMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
Mont. Code Ann. § 61-3-222, Surviving spouse or heir, small estatesMontana Legislature. Montana Code Annotated 2025, accessed September 27, 2026.
End of Life forms, including the Affidavit for Collection of Personal Property PacketMontana Judicial Branch, State Law Library. Current official forms page, accessed September 27, 2026.
Office of Vital Records Fee ScheduleMontana Department of Public Health and Human Services. Fee schedule effective September 21, 2024, accessed September 27, 2026.

Information current as of May 31, 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.