What is the Law on Wills in Montana?
Full Question:
Answer:
Generally, a person may leave property of any amount to anyone she wishes, regardless of family members. A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent.
A bequest in a will is typically considered a gift that may be freely revoked by the will maker. In some cases, a person may make a legally enforceable contract to leave a person a bequest in a will in exchange for services provided or other value received. Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.
A will may appoint a guardian for a minor. The following is a MT statute:
72-5-211. Testamentary appointment of guardian of minor — when effective —
priorities — notice of appointment.
(1) The parent of a minor may appoint by will a guardian of an unmarried
minor. Subject to the right of the minor under 72-5-213, a testamentary
appointment becomes effective upon filing the guardian's acceptance in the
court in which the will is probated if before acceptance both parents are
dead or the surviving parent is adjudged incapacitated. If both parents are
dead, an effective appointment by the parent who died later has priority.
(2) Upon acceptance of appointment, written notice of acceptance must be
given by the guardian to the minor and to the person having his care or to
his nearest adult relations.