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Montana Small Estate Affidavit
Support GuideMontana19 min read

Montana Small Estate Affidavit

Montana's small estate affidavit collects up to $100,000 of personal property 30 days after death, with no court filing. A house counts toward it.

By Settled Editorial

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Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

Montana lets a successor collect a small estate's personal property without opening probate at all. Under MCA 72-3-1101, once 30 days have passed since the death, anyone holding the decedent's money or belongings has to hand them over to the person presenting a sworn affidavit, provided the probate estate, less liens and encumbrances, is worth $100,000 or less and no one has applied to be personal representative.

That figure has been $100,000 since October 1, 2023. Before then it was $50,000, and a large share of the forms and articles you will find still print the old number. This guide covers what the $100,000 measures, why a house counts toward it but cannot pass through it, the four statements the affidavit has to make, where it goes and what it costs, how vehicles work, and Montana's second small estate route, summary administration, which carries no dollar figure at all. If the estate does not fit, full Montana probate is the fallback.

Two Routes, and Only One Has a Number

Montana puts both small estate routes in the same short part of the code, MCA Title 72, chapter 3, part 11, which runs from 72-3-1101 to 72-3-1104. They do different jobs.

MCA 72-3-1101MCA 72-3-1103
Common nameSmall estate affidavit, collection of personal property by affidavitSummary administration procedure
Dollar figure$100,000None. The test is a list of allowances and expenses
Who uses itA successor entitled to the propertyA personal representative already appointed
Court involvementNone. The affidavit goes to the holder of the propertyThe estate is open with the Clerk of District Court
What it movesDebts owed to the decedent, tangible personal property, instruments, securitiesEverything in the estate, including real property
Creditor noticeNot part of the routeSkipped. The personal representative distributes without it
ClosingNothing to closeA verified statement filed under 72-3-1104

Several websites call 72-3-1103 "summary probate" and attach the $100,000 to it. That mixes up two sections. Only 72-3-1101 has a dollar figure, and an estate can fit one route and not the other.

Montana has no third route for a surviving spouse. Part 11 ends at 72-3-1104, so there is no spouse-only summary procedure of the kind a few neighboring states offer.

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What the $100,000 Measures

MCA 72-3-1101(1)(a) states the test in one line: the value of the probate estate, wherever located, less liens and encumbrances, does not exceed $100,000.

Take each part in turn.

  • The probate estate. Senate Bill 286, the 2023 act that raised the figure, also replaced the older words "entire estate" with "probate estate". Property that passes outside probate sits outside the measure: a joint account with right of survivorship, a payable-on-death account, a life insurance policy with a living beneficiary, a vehicle with a title beneficiary, or land covered by a recorded transfer on death deed.
  • Wherever located. Probate property in another state counts too.
  • Less liens and encumbrances. This is a net figure. Debt secured against an asset comes off that asset's value before you add it up.

Here is a worked estate. The decedent owned a house worth $180,000 with $120,000 still owed on the mortgage, which contributes $60,000. Add a checking account of $25,000 in the decedent's name alone and a pickup worth $10,000 with no loan against it. The probate estate measures $95,000, under the line. A retirement account with a named beneficiary would not count at all, whatever its size.

Deaths before October 1, 2023

The figure moved; it did not split into two tiers. Montana set it at $50,000 in 2005 (Ch. 513, L. 2005), and SB 286 (Ch. 453, L. 2023) raised it to $100,000. The act states no effective date, so under MCA 1-2-201(1)(a) it took effect on the first day of October after it passed: October 1, 2023.

For a death on or after that date, the limit is $100,000. For a death before it, the limit in force at the death was $50,000. SB 286 contains no transition clause, so the statute does not say which figure governs when an older death is settled today. If the death came before October 1, 2023 and the estate falls between $50,000 and $100,000, ask the bank what it will accept, or ask a Montana lawyer, before you rely on the higher number.

The $5,000 in subsection (2) is not a second tier

MCA 72-3-1101(2) lets the Montana Department of Revenue refund unclaimed property to a successor when that property is worth $5,000 or less, regardless of the value of the estate. That is a rule about money the state is already holding. It does not create a $5,000 small estate route or change the $100,000 test for anything else.

The House Counts, but It Cannot Pass This Way

This is the part that surprises families most. MCA 72-1-103(40) says "property" includes both real and personal property. So a house or land titled in the decedent's own name is part of the probate estate and counts toward the $100,000, net of its mortgage.

The affidavit, though, only moves what 72-3-1101 lists: payment of a debt owed to the decedent, tangible personal property, and an instrument evidencing a debt, obligation, stock or chose in action. Subsection (3) adds registered securities, which a transfer agent has to move into the successor's name. Land is not on that list, and part 11 contains no real property affidavit. The State Law Library's own instructions say it plainly: you cannot use the affidavit to collect land, a house or a building.

So an estate can pass the value test and still need a court for the house. The routes that carry real estate are:

  • A transfer on death deed recorded before the death, which passes the house to its beneficiary outside probate. Montana has had this since 2019; see passing the house outside probate.
  • Joint tenancy with right of survivorship, where the surviving owner already holds title.
  • Summary administration under 72-3-1103 when the estate is small enough, covered below.
  • Formal or informal probate, where the personal representative deeds the property to the heirs.

One timing trap follows from this. The affidavit route closes the moment anyone applies to be personal representative. Property a successor collected before that stays answerable: MCA 72-3-1102(3) makes the person who received it accountable to the personal representative or to anyone with a superior right. Collecting the bank account by affidavit and opening probate for the house later is possible, but the account can be pulled back into the estate.

The Four Statements the Affidavit Has to Make

The affidavit is made by or on behalf of the successor, and 72-3-1101(1) requires it to state all four of these.

  1. The value. The probate estate, wherever located, less liens and encumbrances, does not exceed $100,000.
  2. The waiting period. Thirty days have passed since the death. Pages that say five days are repeating another state's rule.
  3. No appointment. No application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction. An open estate in another state counts.
  4. Entitlement. The person claiming the property is the successor entitled to it, under the will or under Montana's intestate succession rules when there is no will.

The statute sets no outer deadline for using the affidavit. The three-year limit some pages attach to it comes from MCA 72-3-122, which governs probate and appointment proceedings, not the affidavit.

Where the Affidavit Goes and What It Costs

It goes to whoever holds the property, not to a court. Nobody files it with the Clerk of District Court, so there is no filing fee.

The Montana State Law Library publishes an unnumbered Affidavit for Collection of Personal Property Packet on the Montana Judicial Branch end-of-life forms page. The packet version posted there was last updated January 14, 2024 and uses the $100,000 figure. Its instructions walk through the steps:

  1. Confirm the estate is worth $100,000 or less after liens, that at least 30 days have passed, and that no one has gone to court to be appointed personal representative.
  2. Fill in the affidavit and sign it in front of a notary public.
  3. Make a copy for each bank, employer or other holder, and keep a copy of the death certificate to go with it.
  4. Deliver the signed affidavit in person or by mail to each holder.

What the holder has to do

MCA 72-3-1102 gives the holder a reason to cooperate. A holder who pays or delivers on the affidavit is discharged and released to the same extent as if it had dealt with a personal representative, and it does not have to check whether the statements in the affidavit are true. If a holder refuses, 72-3-1102(2) lets the person entitled to the property bring a proceeding to compel payment or delivery.

Some banks also ask the successor to sign an indemnity agreement before releasing funds. The State Law Library packet warns that signing one can leave you liable later if someone proves the release was wrong, so read it before you sign.

Anyone who swears the affidavit is promising every statement in it is true. If there are other people who might be the successor, the packet suggests talking with them first.

Vehicles Have Their Own Statute

Montana gives vehicles a separate small estate procedure outside part 11. MCA 61-3-222 lets a surviving spouse or other heir retitle a decedent's motor vehicles, trailers, campers, motorboats, personal watercraft, sailboats or snowmobiles by filing an affidavit with the department when:

  • the value of the entire estate, including those vehicles, less liens and encumbrances, does not exceed the limit set in 72-3-1101;
  • the decedent left no other property that requires letters of administration or letters testamentary; and
  • no will left the property to someone else.

Two details matter. Section 61-3-222 still uses the words "entire estate", which the 2023 act removed from 72-3-1101 but did not change here. And the "no will" condition means a vehicle left by will goes through the will's route rather than this affidavit.

A vehicle whose owner completed a beneficiary designation on the title application passes to that beneficiary without probate under MCA 61-3-226, and a will does not defeat a perfected designation. For the title steps and fees, see transferring a vehicle title. We do not list a Motor Vehicle Division form number here, because we could not confirm the current one at the source.

The Second Route: Summary Administration

MCA 72-3-1103 is for an estate so small that the family's allowances and the unavoidable bills would use it all up. It has no dollar limit. The test reads: if the inventory and appraisal show the value of the entire estate, less liens and encumbrances, does not exceed the sum of

  • the homestead allowance,
  • exempt property,
  • the family allowance,
  • costs and expenses of administration,
  • reasonable funeral expenses, and
  • reasonable and necessary medical and hospital expenses of the last illness,

then the personal representative may distribute the estate to the people entitled to it right away, without giving notice to creditors, and close it by sworn statement.

Unlike the affidavit, this route needs an open estate. Someone has to be appointed personal representative through the Clerk of District Court, which costs $100 to open, and prepare the inventory and appraisal that 72-3-1103 measures against. The State Law Library's How to Administer a Small Estate Packet, on the same forms page, contains the application, inventory and closing forms for this route. It can move real property, too: a personal representative can deed the house to the heirs.

Three amounts are set by law, and one depends on the family

The fixed pieces come from Title 72, chapter 2, part 4:

AllowanceAmountWho receives it
Homestead allowance, MCA 72-2-412$22,500The surviving spouse; if none, divided among minor and dependent children
Exempt property, MCA 72-2-413Up to $15,000The surviving spouse; if none, the children jointly
Family allowance, MCA 72-2-414A reasonable allowance for up to one yearThe surviving spouse and minor or supported children

The family allowance has no fixed amount in 72-2-414. MCA 72-2-415(1) lets the personal representative set it without a court order at up to $27,000 as a lump sum, or up to $2,250 a month for one year. A court can allow a different amount on petition. For the full rules on those allowances, see the family allowance.

So for a decedent survived by a spouse, the allowances alone can reach $64,500 ($22,500 plus $15,000 plus a $27,000 family allowance) before the funeral, the last-illness bills and the cost of administration are added. For a decedent with no spouse and no children, all three allowances drop out, and only the expenses remain. That is why we do not print a single ceiling for this route: whether an estate fits depends on who survived and on bills that are not known in advance.

Closing by sworn statement

MCA 72-3-1104 lets the personal representative close by filing a verified statement at any time after disbursement and distribution. The statement says the estate did not exceed the allowances and expenses above, that the estate was fully administered by paying estate taxes and distributing the property, and that a copy went to every distributee and to every known creditor whose claim is neither paid nor barred, with a full written account to the affected distributees.

The ordinary closing statement under MCA 72-3-1004 cannot be filed until 6 months after appointment and only after the creditor claim period has run. The small estate version carries no such wait. Either way, if nothing involving the personal representative is pending in court one year after the statement is filed, the appointment ends.

When Full Probate Is the Better Route

Neither shortcut fits every small estate. Consider when the affidavit is not enough in these cases:

  • The probate estate is over $100,000 after liens, and the allowances and expenses do not absorb it.
  • Real property is in the decedent's name with no transfer on death deed or joint tenancy, and the estate is too large for summary administration.
  • Creditors may have claims. Formal notice under the regular process starts the four-month claim window and cuts off late claims. Neither shortcut does that.
  • The heirs disagree about who is entitled to what. An appointed personal representative acts with court authority, and the successor on an affidavit swears to entitlement under oath.
  • An application is already on file anywhere. The affidavit route is closed.

Montana probate runs through the Clerk of District Court in the county where the decedent lived. The clerk of district court directory lists all 56. The Montana probate timeline covers how long the regular process takes.

Common Questions

What is the small estate limit in Montana?

$100,000. MCA 72-3-1101(1)(a) sets the test as the value of the probate estate, wherever located, less liens and encumbrances. The figure was $50,000 until the Legislature raised it in 2023 (Ch. 453, L. 2023, Senate Bill 286). That act states no effective date, so it took effect on October 1, 2023, the default date in MCA 1-2-201(1)(a). Many forms and websites still print the old $50,000.

Can you use a Montana small estate affidavit if the estate owns a house?

The house does not close the route, but the affidavit cannot move it. MCA 72-1-103(40) defines property to include real property, so a house in the decedent's own name counts toward the $100,000 at its value less the mortgage. The affidavit only reaches debts owed to the decedent, tangible personal property, instruments such as account records and stock certificates, and registered securities. The Montana State Law Library's own packet says you cannot use it for land, a house or a building, so the real estate needs another route such as a transfer on death deed recorded before the death, joint tenancy, or a probate.

How long do you have to wait to use a Montana small estate affidavit?

Thirty days. MCA 72-3-1101(1) opens with the words thirty days after the death of a decedent, and 72-3-1101(1)(b) makes the same 30 days one of the four statements the affidavit has to contain. Some websites say five days, which is another state's rule. The route also closes once anyone applies or petitions to be appointed personal representative, in Montana or in any other jurisdiction.

Do you file a Montana small estate affidavit with the court?

No. The successor signs the affidavit in front of a notary and hands a copy to each bank, debtor, transfer agent or other holder of the property. No clerk receives it, so there is no filing fee. MCA 72-3-1102(1) discharges a holder who pays on the affidavit to the same extent as if it had dealt with a personal representative, and 72-3-1102(2) lets the rightful successor bring a proceeding to compel a holder who refuses.

Is there an official Montana small estate affidavit form?

There is no numbered court form. The Montana State Law Library publishes an unnumbered Affidavit for Collection of Personal Property Packet, with instructions and a fill-in affidavit, on the Montana Judicial Branch end-of-life forms page. The version posted there was last updated January 14, 2024 and already uses the $100,000 figure.

What is summary administration under MCA 72-3-1103?

It is Montana's second small estate route, and it has no dollar figure. It applies when the inventory and appraisal show the entire estate, less liens and encumbrances, is worth no more than the homestead allowance ($22,500), exempt property ($15,000), the family allowance, the costs of administration, reasonable funeral expenses, and the reasonable medical and hospital expenses of the last illness. A personal representative has to be appointed first. That person may then distribute without giving notice to creditors and close the estate with a verified statement under MCA 72-3-1104.

Can a Montana small estate affidavit transfer a car?

Vehicles have their own statute. MCA 61-3-222 lets a surviving spouse or other heir file an affidavit with the Department of Justice to retitle a vehicle, trailer, camper, boat or snowmobile when the estate is within the 72-3-1101 limit, no other property needs letters from a court, and no will left the vehicle to someone else. If the owner named a beneficiary on the title under MCA 61-3-226, the vehicle passes to that beneficiary outside probate instead.

Related Guides

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.

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