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Montana Transfer on Death Deed
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Montana Transfer on Death Deed

A Montana transfer on death deed passes land at death under MCA 72-6-401 to 72-6-418. Record it before you die, or the deed does nothing.

By Settled Editorial

A Montana transfer on death deed names who receives your Montana real estate when you die, and it works only if the county clerk and recorder records it before your death. MCA 72-6-408 sets three requirements, and the recording rule is the one that sends unrecorded deeds straight into probate.

Montana adopted the Uniform Real Property Transfer on Death Act in 2019. The rules sit at Title 72, chapter 6, part 4, sections 72-6-401 through 72-6-418 of the Montana Code Annotated, enacted by Chapter 313 of the 2019 Laws of Montana (Senate Bill 225). Two later acts changed it. Chapter 143 of the 2021 Laws of Montana amended the optional forms, and Chapter 296 of the 2025 Laws of Montana (House Bill 464) added an insurance carry-over for the beneficiary.

This guide walks the deed from drafting to the first weeks after your death, including three Montana rules most deed-form sites skip: the antilapse rule, the older beneficiary deed, and the 45-day insurance window.

What A Montana Transfer On Death Deed Does

MCA 72-6-404 says an individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed. Four definitions in 72-6-402 set the edges:

  • Property means an interest in real property located in Montana that is transferable on the death of the owner (72-6-402(5)). A Montana deed reaches Montana land only. A cabin across the line in Idaho or Wyoming needs that state's instrument.
  • Transferor means an individual who makes a transfer on death deed (72-6-402(7)).
  • Beneficiary means a person that receives property under the deed (72-6-402(1)), and "person" covers a trust, a corporation, a charity, or a government body as well as a human being (72-6-402(4)).
  • Joint owner means someone who owns with a right of survivorship, including a joint tenant, and excludes a tenant in common (72-6-402(3)). That distinction decides what happens at death, covered below.

Three one-sentence sections settle what kind of document this is. It is revocable even if the deed or another instrument says otherwise (72-6-405). It is nontestamentary (72-6-406), so it passes outside your will and outside probate. And the capacity required to make or revoke one is the capacity required to make a will (72-6-407), which Montana will requirements explains.

The deed is one option among several. MCA 72-6-403 says part 4 does not affect any other method of transferring property that Montana law allows, so joint tenancy and a living trust still work. Other ways to avoid probate compares them side by side.

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The Three Requirements In MCA 72-6-408

Section 72-6-408 sets three requirements. A transfer on death deed:

  1. must carry the elements and formalities of a properly recordable inter vivos deed
  2. must state that the transfer to the designated beneficiary is to occur at the transferor's death
  3. must be recorded before the transferor's death in the public records of the county clerk and recorder of the county where the property is located

Requirement one points outside Title 72. MCA 70-21-203 says an instrument must be acknowledged, or its execution proved, before it can be recorded. The back of the optional form at 72-6-415 tells you how: have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. The form also needs the legal description of the property. It answers its own question on that point in one word, "Yes," and says the description may be on the deed you received when you became an owner or available from the county clerk and recorder. Your street address is not a legal description.

Requirement three is the one that voids deeds. You record in the county where the land sits, and the form adds that if the property lies in more than one county, you should record in each of them.

You do not have to tell the beneficiary. MCA 72-6-409 makes the deed effective without notice or delivery to, or acceptance by, the designated beneficiary during your life, and without consideration. The form still recommends telling them, because secrecy "can cause later complications and might make it easier for others to commit fraud."

What The Deed Does Not Do While You Are Alive

MCA 72-6-411 lists six things a transfer on death deed does not do during the transferor's life:

  • affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property
  • affect an interest or right of a transferee, even one with actual or constructive notice of the deed
  • affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even one with notice
  • affect the transferor's or the designated beneficiary's eligibility for any form of public assistance
  • create a legal or equitable interest in favor of the designated beneficiary
  • subject the property to claims or process of a creditor of the designated beneficiary

Read the first and last together. You can sell, refinance, or lease the land without asking anyone, and a judgment against your beneficiary cannot attach to it while you live. The fourth item speaks to eligibility during life. Medicaid recovery after death is a separate question, covered below.

Revoking A Montana Transfer On Death Deed

MCA 72-6-410 allows revocation by instrument and bars revocation by act. Under 72-6-410(1)(a), three instruments work:

  • a later transfer on death deed that revokes the earlier one, or part of it, expressly or by inconsistency
  • an instrument of revocation that expressly revokes it
  • an inter vivos deed that expressly revokes it

Montana asks more of that third route than some states do. An ordinary deed to someone else has to say it revokes the transfer on death deed. Whichever route you pick, 72-6-410(1)(b) adds two conditions: you must acknowledge the new instrument after the acknowledgment of the deed being revoked, and it must be recorded before your death with the county clerk and recorder where the deed is recorded. Section 72-6-410(4) separately confirms that an inter vivos transfer of the property revokes any earlier transfer on death deed to it, so a sale ends the arrangement.

Then the trap. Under 72-6-410(3), once a transfer on death deed is recorded it may not be revoked by a revocatory act on the deed. Tearing up or burning your copy does nothing, because the county's copy governs. The back of the form draws the line in time: before you record, you can change your mind by tearing up the deed, and after you record, you revoke on paper. It adds, "You may not revoke the TOD deed by will."

Co-owners should read 72-6-410(2). Revocation by one transferor does not affect the deed as to another transferor's interest, and a deed made by joint owners is revoked only if all of the living joint owners revoke it. The optional revocation form at 72-6-416 says the same thing in its notice: the revocation "is effective only as to the interests in the property of owners who sign this revocation."

What Happens At Your Death

MCA 72-6-412 governs the transfer. Its rules apply except as the deed itself provides, and except as provided in five other sections: 72-2-712 (the 120-hour survival rule), 72-2-716 (the antilapse rule for beneficiary designations), 72-2-813 (financial exploitation or homicide), 72-2-814 (revocation by divorce), and 72-6-112 (creditor claims). The whole section is also subject to Title 72, chapter 2, part 2, which holds the surviving spouse's elective share.

Survival is a condition, with a Montana twist. Section 72-6-412(1)(b) makes the beneficiary's interest contingent on surviving you and says an interest that fails to survive lapses. Under 72-2-712(2), someone not shown by clear and convincing evidence to have outlived you by 120 hours is treated as having died first. But the lapse rule yields to 72-2-716, and MCA 72-1-103(4) defines a beneficiary designation to include a governing instrument naming a beneficiary of "any other nonprobate transfer at death." Under 72-2-716(2)(a), when a beneficiary who is your grandparent, a descendant of your grandparent, or your stepchild dies before you and leaves surviving descendants, a substitute gift goes to those descendants. Your son's children can take his share even though the deed never names them. Section 72-2-716(2)(c) adds that words like "if the beneficiary survives me," standing alone, do not switch that rule off. What does control it is an alternate beneficiary in the deed, which supersedes the substitute gift under 72-2-716(2)(d). The optional form has a line for one.

Two or more beneficiaries share without survivorship. Under 72-6-412(1)(c), concurrent interests pass in equal and undivided shares with no right of survivorship. If one share lapses or fails, 72-6-412(1)(d) moves it to the other beneficiaries in proportion to their interests.

The mortgage stays with the land. Section 72-6-412(2) gives the beneficiary the property subject to every conveyance, encumbrance, assignment, contract, mortgage, lien, and other interest attached to it at your death, and for recording-priority purposes it treats the deed as recorded at your death. Section 72-6-412(4) says the deed transfers without covenant or warranty of title, even if it contains a contrary provision.

A surviving joint owner comes first. Under 72-6-412(3), if you are a joint owner and another joint owner outlives you, the property belongs to the survivor with right of survivorship. The deed takes effect only if you are the last surviving joint owner. A tenant in common is not a joint owner under 72-6-402(3), so a tenant in common's own share can pass by the deed at that owner's death.

The house stays insured for a short window. Section 72-6-412(5), added in 2025, extends the owner's real property insurance, with all its rights and obligations, to cover the transferred property as if the designated beneficiary were the named insured, unless the beneficiary has disclaimed. That temporary coverage ends at the earliest of 45 days after the owner's death, the policy's expiration date, or the placement of the beneficiary's replacement policy. Call the insurer in the first weeks, not the second month.

Divorce and misconduct change the result. Section 72-2-814(2)(a) revokes a revocable disposition to a former spouse, or to a relative of the former spouse, on divorce or annulment unless the deed, a court order, or a property settlement says otherwise. Section 72-2-813 applies the same kind of forfeiture to a beneficiary who financially exploits or feloniously and intentionally kills the transferor.

A beneficiary who does not want the property may disclaim all or part of the interest under 72-6-413, which points to the Uniform Disclaimer of Property Interests Act at 72-2-817 through 72-2-833.

Older Montana Beneficiary Deeds

Before 2019, Montana's instrument was called a beneficiary deed, and you may find one in a parent's papers. MCA 72-6-417 says any beneficiary deed executed and recorded before October 1, 2019, which met the law that applied when it was recorded, is deemed a transfer on death deed for the purposes of part 4. The document keeps working, and today's rules on revocation, lapse, insurance, and creditor liability now govern it. A beneficiary deed that was signed but never recorded before that date gets no help from 72-6-417.

The Optional Statutory Forms

MCA 72-6-415 prints a "REVOCABLE TRANSFER ON DEATH DEED" and 72-6-416 prints a "REVOCATION OF TRANSFER ON DEATH DEED." The Montana State Law Library lists the first on its wills, trusts, and probate forms page as the "Optional Form of Transfer on Death Deed." Both were amended by Chapter 143 of the 2021 Laws of Montana.

The deed form asks for each owner's printed name and mailing address, the legal description, a first beneficiary, and an optional alternate beneficiary who takes if the first does not survive you. It closes with the owners' signatures and an acknowledgment. Its back page answers the questions owners ask, including this one: "I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer."

Using the form is optional. Each section says the rest of part 4 governs the effect of the form or of any other instrument used for the same job, so a deed drafted by a Montana attorney that meets 72-6-408 works the same way.

What Recording Costs

MCA 7-4-2632 sets the county clerk and recorder's charge at $20 for the first page or fraction of a page and $10 for each additional page or fraction when recording is done by a photographic or similar process. Chapter 480 of the 2025 Laws of Montana last amended that section. A two-page deed comes to $30, and a revocation costs the same per page. Confirm the figure with your county clerk and recorder before you go, since the section carries an exception for 7-2-2803(4).

After The Owner Dies

Part 4 prints no affidavit for the beneficiary to record, unlike some states' versions of the act. Montana's separate after-death filing at 72-16-503 is written for a joint tenancy or life estate interest: 72-16-502 defines the decedent it covers, and 7-4-2613(1)(c) defines a nonprobate interest in real property as "a joint tenancy interest or a life estate interest." It does not name a transfer on death deed.

So ask the county clerk and recorder what it wants on file to index the change. MCA 7-4-2613(1)(d) lists certificates of deaths among the documents a county clerk records. Give your beneficiary a copy of the recorded deed with its recording information, so nobody has to search for it later. Once title is clear, selling property received by TOD deed covers the next step.

Where The House Can Still Be Reached

A transfer on death deed keeps that property out of probate. It does not put the property beyond every claim.

Estate creditors and family allowances have one year

MCA 72-6-414 makes a transfer on death deed beneficiary liable for allowed claims against the transferor's probate estate and for statutory allowances to a surviving spouse and children, to the extent provided in 72-6-112. Section 72-6-112(2) limits that liability to what the probate estate cannot pay, and caps it at the value the beneficiary received or controls. Section 72-6-112(3) sets an order: a transferee the will or another instrument names comes first, then the trustee of a trust at the center of the plan, then other nonprobate transferees in proportion to what they received.

Two procedural limits apply. Under 72-6-112(7), no proceeding starts without a written demand to the personal representative from the surviving spouse or a child, where allowances are affected, or from a creditor. Under 72-6-112(8), the proceeding must start within 1 year after the death, with a 60-day extension for a creditor whose claim was allowed only after a fight over its disallowance. Section 72-6-112(1) excludes a survivorship interest in a joint tenancy of real estate from this rule, so it reaches land under a transfer on death deed but not land held in joint tenancy. Creditor claims against a TOD beneficiary explains how a claim becomes an allowed claim in the first place.

Medicaid recovery reaches further

MCA 53-6-167(2) lets the Department of Public Health and Human Services present a claim against a person who received a deceased Medicaid recipient's property "by distribution or survival." Section 53-6-167(5)(a) defines that property as any real or personal property in which the recipient had any right, title, or interest immediately before death, including assets passing through joint tenancy, a life estate, a living trust, "or other arrangement." A transfer on death deed leaves the owner with full ownership until death under 72-6-411, and that definition reads broadly enough to reach it.

Section 53-6-167(9)(b) bars recovery while the recipient has a surviving spouse, or a surviving child under 21, blind, or permanently and totally disabled. Section 53-6-167(4)(b) gives the department 3 years from the later of the death or the closing of the estate to sue a recipient of property. If long-term care Medicaid is likely, ask a Montana attorney how recovery would treat the specific parcel before you rely on the deed.

When A Transfer On Death Deed Is The Wrong Tool

The deed answers one question well: who gets this piece of Montana land. Several situations point elsewhere.

  • You own land in more than one state. A Montana deed reaches only property located in Montana (72-6-402(5)). A trust instead of a TOD deed can hold land in several states under one document.
  • The beneficiary is a minor or cannot manage property. The deed hands the land outright. A trust can hold it until the beneficiary is ready.
  • You already own the land in joint tenancy. Under 72-6-412(3) the surviving joint owner takes first, so the deed matters only after every co-owner is gone.
  • You need someone to manage the land if you become incapacitated. The deed does nothing during your life (72-6-411). That job belongs to a power of attorney or a trustee.

If the owner died without a recorded deed, the land goes through the estate. Start with the Montana probate guide, and see Montana intestate succession if there was no will either.

Frequently Asked Questions

Does Montana have a transfer on death deed?

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 the transferor's death by a transfer on death deed, and 72-6-402(5) limits property to an interest in real property located in Montana.

Does a Montana transfer on death deed have to be recorded before death?

Yes. MCA 72-6-408(3) says the deed must be recorded before the transferor's death in the public records in the office of the county clerk and recorder of the county where the property is located. The optional form at 72-6-415 prints the same warning in its notice to the owner: this form must be recorded before your death, or it will not be effective. A signed deed kept in a drawer transfers nothing.

How do you revoke a Montana transfer on death deed?

By recording another instrument. MCA 72-6-410(1) accepts a later transfer on death deed that revokes the earlier one expressly or by inconsistency, an instrument of revocation that expressly revokes it, or an inter vivos deed that expressly revokes it. The new instrument must be acknowledged after the deed it revokes and recorded before your death with the county clerk and recorder where the deed is recorded. Under 72-6-410(3) a recorded deed may not be revoked by a revocatory act on the deed, and the form at 72-6-415 says you may not revoke it by will. Section 72-6-416 prints an optional revocation form.

What happens if a Montana TOD deed beneficiary dies first?

MCA 72-6-412(1)(b) makes the beneficiary's interest contingent on surviving the transferor, and an interest that fails to survive lapses. That rule is made subject to 72-2-716, and 72-1-103(4) counts a nonprobate transfer at death as a beneficiary designation. So where the deceased beneficiary was a grandparent, a descendant of a grandparent, or a stepchild of the transferor and left surviving descendants, 72-2-716(2)(a) creates a substitute gift in those descendants, unless an alternate beneficiary named in the deed takes instead under 72-2-716(2)(d). Name an alternate to decide this yourself.

Is an old Montana beneficiary deed still valid?

Yes, if it was done right at the time. MCA 72-6-417 says any beneficiary deed executed and recorded before October 1, 2019, which met the law that applied when it was recorded, is deemed a transfer on death deed for the purposes of part 4. The current rules on revocation, lapse, and creditor liability then govern it.

Can creditors reach a house that passed by a Montana transfer on death deed?

Yes, for one year and only through the estate. MCA 72-6-414 makes the beneficiary liable for allowed claims against the probate estate and statutory allowances to a surviving spouse and children to the extent provided in 72-6-112. Under 72-6-112(2) the liability applies only where the estate falls short and never exceeds the value received. A proceeding needs a written demand to the personal representative, and 72-6-112(8) requires it within 1 year after the death.

What does it cost to record a transfer on death deed in Montana?

MCA 7-4-2632 sets the county clerk and recorder's charge at $20 for the first page or fraction of a page and $10 for each additional page when recording is done by a photographic or similar process. That section was last amended by Chapter 480 of the 2025 Laws of Montana. A two-page deed comes to $30 under that schedule. Ask your county clerk and recorder for its current figure before you go.

This guide is general information about Montana real property and estates. Confirm anything that affects a particular parcel with the county clerk and recorder where it sits, the district court handling the estate, or a licensed Montana attorney before you sign or record.

Sources:

It is not legal advice.

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Settled Estate is not a law firm and does not give 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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