Wills and Probate

There is a myth that estate planning is only for the wealthy.  Cost-effective planning is for everyone.  Call Garden City Law to discuss how estate planning may help you.  Initial consultations are free of charge.   The following are answers to frequently asked questions.  

What is a will? 

 A will is a written legal document that may direct who receives your real and personal property, nominate a guardian your minor children, nominate the person or entity to handle your affairs after death, make provisions for the care or support of a family member, friend, or other person (sometimes by means of a trust), and more.

Do I need a will? 

Wills are not required by law, but can serve to make sure your wishes are followed after you die, and avoid problems for your family and friends after you die.  If you own or expect to own property, or have a spouse or children, you should have a will.  If you have remarried and have children from a former marriage, a will is particularly important to assure your wishes are followed in distributing your property.   

What happens to my property if I die without a will? 

If you die without a will, your property will be distributed by “Intestate Succession”.  This basically means your property will be distributed to relatives in a certain order as set forth in Montana intestacy statutes.  One problem with this is that the intestacy statutes focus on value and treat all property the same.  Accordingly, if legal heirs disagree as to a division of property, sale of cherished family heirlooms, collections, or the family business may become required to distribute value as required by law.  This may be avoided by having a valid will. 

If you die without a valid will, your property passes to your spouse, children, or both.  However, the share your spouse or children receive will vary depending on a number of factors, such as whether you or your spouse have children of a previous marriage, whether you have surviving parents, and the overall size of your estate. If you are not survived by a spouse or child, your estate will pass to your next of kin.  Your estate will go to the State of Montana if you have no next of kin.  You may avoid these defaults with a valid will.

If you die without a valid will naming a child guardian and there is no surviving parent, the Court will appoint a guardian.  It is possible the court will appoint someone neither you or the child’s mother would have wanted to serve as guardian.  You may avoid this uncertainty by appointing a guardian for your children in a valid will.  

What is Probate?

Probate is the administration of a deceased person’s estate.  The person who administers the estate is called the “personal representative”. The personal representative accounts for the estate, notifies heirs and beneficiaries, collect debts owed to you, pursues legal claims your estate may be entitled to (like wrongful death and survivorship claims), pays debts and taxes, and distributes the rest of your property as set forth in your will (or per intestate succession if you left no will).   Some types of property pass outside of probate, such as retirement benefits, life insurance proceeds, joint tenancy assets, and Payable on Death (POD) and Transfer on Death (TOD) accounts. 

What is a beneficiary deed?

A beneficiary deed is a way to transfer real property located in Montana to one or more beneficiaries without probate after your death.  You may designate your spouse, children, relatives, friends, or charitable organizations as beneficiaries.  After signed and filed with the clerk and recorder, a beneficiary deed cannot be revoked by a will.  If a beneficiary deed designates one person as the grantee beneficiary, and a written will designates a different person as the devisee of the property, the beneficiary deed trumps the will and the property goes to the grantee beneficiary named in the beneficiary deed.  Revocation may be accomplished by filing a revocation with the clerk and recorder, or filing a new beneficiary deed naming a different grantee beneficiary.  A beneficiary deed is a cost effective tool for transferring real property without the delay and expense of probate.  

What is a homestead exemption?

A homestead declaration is a document you may sign and file with the clerk and recorder to protect your Montana home or mobile home from creditors.  A homestead declaration may shelter up to $250,000 of equity in your home or mobile home.

What is a power of attorney? 

A power of attorney is a document in which a person (the principal) authorizes another person (the agent) to act on his or her behalf. If the principle is unavailable (perhaps travelling), the agent may make financial decisions and conduct transactions for the principle.  However, a regular power of attorney would not provide authority if the principal becomes incapacitated.  A durable power of attorney is required for this purpose. 

A durable power of attorney authorizes an agent to make decisions on behalf of a principle in the event the principle becomes legally incapacitated.  A durable power of attorney must include certain language specifying the agent has authority over the principal’s finances in the event he or she becomes legally incompetent.

A durable power of attorney may also be used to authorize an agent to make healthcare decisions for the principle in the event the principle becomes incapacitated.  

What is an advance directive?    

An advance directive is a document instructing how you wish to be treated if you become seriously ill and unable to make healthcare decisions for yourself.  Types of advance directives include living wills, medical powers of attorney, health care directives, and provider orders for life sustaining treatment.  The Terri Schiavo legal battle from 1990 to 2005 over life-sustaining treatment underscores the importance and benefit of advance directives to ensure your wishes are met and protect your family and friends from conflict inherent in such divisive issues.  Although it may be a difficult issue to confront, declare your wishes and instructions now so your friends and family will not potentially be torn apart fighting over what they believe you would have wished. 

How will my healthcare providers know of my living will/advance directive? 

It is generally a good idea to discuss and provide a copy of our advance directive to appropriate family members and persons you appointed to make health decisions if you become incapacitated (including successor appointees).  However, this can be a difficult conversation many of us have difficulty initiating.  The Montana Attorney General’s Office maintains and End-of-Life Registry Web site for Montana citizens. This may provide a secure place to store your advance directive online and give healthcare providers immediate access.  For more information see the Montana Department of Justice’s Website.  

What does estate planning cost? 

There is a myth that estate planning is only for the rich.  Estate planning is for everyone.  We all share common goals of protecting our assets, providing for loved ones, distributing assets according to our wishes, minimizing expense, and keeping our matters private.  Garden City Law is committed to providing affordable and cost-effective estate planning to regular Montanans.  Sliding scale fees are offered on a case-by case basis.

We all want to protect our assets, ensure our property goes to those we choose upon death, provide for our loved ones, and minimize expense, hassle, and conflict in the event we become incapacitated or die.  Call André Gurr at Garden City Law, PLLC to ensure your wishes are met.  Prompt, precise, and professional service is guaranteed.  Consultations are confidential and free of charge.  As an experienced and knowledgeable wills and probate attorney in Missoula, André provides legal services throughout Western Montana, including Missoula, Mineral, Ravalli, Lake, Sanders, Flathead, Lewis and Clark, and Beaverhead County.  

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