If you die without a valid will while residing in the State of Montana, you are said to have died "intestate." In order to determine who will receive your property if you die intestate, the State of Montana has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see Montana Intestacy Laws | Intestate Succession statutes.
(1) Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in chapters 1 through 5, except as modified by the decedent's will.
(2) A decedent may by will expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed an intestate share.
The intestate share of a decedent's surviving spouse is:
(1) the entire intestate estate if:
(a) no descendant or parent of the decedent survives the decedent; or
(b) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent but a parent of the decedent survives the decedent;
(3) the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
(1) Any part of the intestate estate not passing to the decedent's surviving spouse under 72-2-112, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) to the decedent's descendants by representation;
(b) if there is no surviving descendant, to the decedent's parents equally if both survive or to the surviving parent;
(c) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
(d) if there is no surviving descendant, parent, or descendant of a parent and the decedent is:
(i) survived by one or more grandparents or descendants of grandparents:
(A) one-half to:
(I) the decedent's paternal grandparents equally if both survive;
(II) the surviving paternal grandparent; or
(III) the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
(B) the other one-half to the decedent's maternal relatives in the same manner; or
(ii) not survived by a grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate to the decedent's relatives on the other side in the same manner as the half;
(e) if there is no surviving descendant, grandparent, or descendant of a grandparent, to the person of the closest degree of kinship with the decedent. Except as provided in subsection (2), if more than one person is of that closest degree, those persons share equally.
(2) If more than one person is of the closest degree as provided in subsection (1)(e) but they claim through different ancestors, those who claim through the nearer ancestor must receive to the exclusion of those claiming through a more remote ancestor.
An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under 72-2-115.
If there is no taker under the provisions of this chapter, the intestate estate passes to the state of Montana.
There are additional statutes pertaining to the distribution of intestate property in the State of Montana. To view those statutes, please click here.
[Reference - Montana's Intestacy Laws].
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