PROBATE OF WILL IN COMMON FORM

June 30, 2010 § 2 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Admission of will to probate:

  • Original will must be presented and filed, if available.
  • Petition must have copy of the will attached.  Uniform Chancery Court Rule 6.15.
  • Will must be proven by at least one subscribing witness, usually through affidavit attached to self-proving will, or by proof of will executed later.  §91-7-7, MCA.

Caveat:

  • Will may not be probated in common form if there is a previously-filed written objection to probate.  §91-7-21, MCA.

Executor appointed and Letters Testamentary Granted:

  • Court appoints executor named in the will, if appropriate.
  • Executor must be over 18 years of age, of sound mind, and not a convict of felony.
  • If no person qualifies or agrees to act as executor, court may appoint one.  §§91-7-35 and 91-7-39.

Oath and Bond:

  • At the time that Letters Testamentary are granted, executor must take and subscribe the oath set out in §91-7-41, MCA.
  • At the time that the executor takes the oath, the executor must also post bond equal to the full value of the estate, unless bond is waived by the terms of the will.  Even so, the court has authority to require a bond.  §91-7-41, MCA.

Notice to Creditors:

Executor has the responsibility to give notice to creditors in the prescribed form and in the proper order set out in §91-7-145, MCA, as follows:

  • Executor to make reasonable effort to identify creditors having a claim against the estate and to mail them actual notice of the 90-day time period in which to file a claim.
  • Executor must file an affidavit of known creditors and attest to having served actual notice on them.
  • Executor must publish notice in newspaper publsihed in the county informing creditors that they have 90 days in which to file a claim against the estate; publication to run 3 times, once per week for 3 consecutive weeks.
  • Executor is required to file proof of newspaper publication in the court file.
  • Publication may be waived by the court in very small estates having value not more than $500.

Inventory and Appraisal:

  • If not specifically waived in the will, the executor is required to complete and file inventory and appraisal within 90 days from the grant of Letters Testamentary.  §91-7-45, MCA.
  • The court may require inventory and appraisal eben if waived in the will.

Interim Hearings:

  • Held as necessary to resolve interlocutory conflicts between the parties.

Accountings:

  • Accountings are required annually and upon closing the estate. 
  • All parties may agree to waive final accounting, and by custom also annual accountings.

Petition to Close Estate and Discharge Executor:

  •  Final account must be filed with petition to close unless excused by the court.
  • All parties in interest must be summoned to hearing on final account and petition to close.  §91-7-295, MCA.
  • Any party may enter an appearance by consent and waiver.
  • If approved, the court enters its final judgment for final distribution of any property remaining in the executor’s care.  §91-7-297, MCA.

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