Montana Estate Planning Considerations

Common-Law State

Montana is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage hold that subject to various qualifications, each spouse owns and has complete control over their own her income and property.

Last Will and Testament

Will Creation

The minimum age of a person competent to make a will is 18. A person younger than 18 may also make a will if that person is a minor emancipated by adjudication, marriage, or entry into active military duty. The number of witnesses necessary to execute a will is two.

Uniform Transfers to Minors Act (UTMA)

The original custodial gift may be a life insurance policy or annuity contract.

Custodial property may be invested in or used to pay premiums on (1) a policy on the minor’s life if the minor’s estate is the sole beneficiary, or (2) a policy on a third party in whom the child has an insurable interest if the minor or the custodian is the irrevocable beneficiary.

The custodial arrangement terminates when:

  • The minor child reaches age 21 for custodial transfers made by irrevocable lifetime gift, will, trust, or exercise of a power of appointment.
  • The minor child reaches age 18 concerning other custodial transfers.
  • The minor child dies.

Dying without a Last Will, the Montana laws of Intestacy.

The estate goes to the surviving spouse, as follows:

  • If there are no surviving descendants, —100% of the estate
  • If there are surviving descendants, all of whom are also descendants of the spouse—$20,000 plus 50% of the balance of the estate
  • If there are surviving descendants, one or more of whom are not also descendants of the spouse, —50% of the estate

If there is no surviving spouse, or if a portion of the estate does not go to the spouse:

  • 100% to children or descendants in equal parts (see RSMo §474.020)

If there is no surviving spouse or descendant:

  • 100% to decedent’s parents, siblings, or their descendants in equal parts

If none of the above:

  • Intestacy laws outline further distribution steps to the level of grandparents, great-grandparents, predeceased spouses, and descendants. See RSMo §474.010(2)(d), (3).
  • If no legally described recipient can be found, estate assets go to the state of Missouri.

Death With Dignity

In 2009, the Montana Supreme Court heard the case of Robert Baxter, a retired truck driver diagnosed with terminal lymphocytic leukemia, who wanted the option of taking medication prescribed by his doctor for a life ending procedure. Baxter and his doctors challenged the application of Montana’s homicide statutes to physicians who prescribe lethal medication to terminally ill patients.

The Montana Supreme Court ruled that physicians can assist patients in ending their lives by prescribing lethal medications to be self-administered by the patient.

Digital Assets

Montana follows the Revised Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.


Inheritance Tax

Montana does not impose an inheritance tax.

Credit Estate Tax

Montana imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under IRC Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.

Generation-Skipping Transfer Tax (GST Tax)

Montana imposes a GST tax equal to the maximum credit allowed under IRC Sec. 2604 for paid state GST tax. However, the current federal tax code does not permit a credit for paid state GST tax. Therefore, there is no current GST tax.

Gift Tax

Montana does not impose a gift tax.

Please give us feedback.