Mark Mackin, Attorney at Law in Montana
An estate includes all the property owned by a person, whether alive or dead. A Will (or Last Will and Testament) is a statement of a person’s intention for distribution of their estate after death.* On the other hand, a trust manages assets for the beneficiary of the trust, whether the donor is alive or dead. Trusts can be stand-alone, as in the case of revocable living trusts, or they may be part of a will. A “testator” is the maker of a will. A “donor” is usually the maker of a trust.
If someone dies without a will, Montana law specifies how the decedent’s property is to be distributed. So, everyone has a default will. See Montana Code Annotated, Title 72, Chapter 11. If you don’t like that general distribution scheme, then consider making a will that suits you better.
Every parent with minor children should make a will, if only a very simple one. In a will, the parent can instruct the courts who should care for their children in the event of their death. Montana courts usually give this instruction great weight.
“Home-made” wills are legal in Montana. But many “home-made” wills are legally void, or do not do what the decedent intended because of mistakes made in ignorance or infirmity. Careful drafting can keep the will out of court or avoid conflicts between heirs.
Avoiding probate court is best done with the help of an attorney. A testator, or maker of a will, may want to avoid expensive lawyers or court expenses that may drain the estate. Trying to avoid probate court, when the estate owes taxes, must pay debts, or includes real estate is a serious and often costly mistake. Mistakes may cause the estate to be distributed in a manner the testator did not intend, or fail to protect property intended for distribution to heirs. A testator who wants to keep their estate out of probate should seek advice well in advance of infirmity.
Various devices can transfer property upon death, but each must be used correctly. For instance, several government programs may have liens against an estate which must be satisfied before distribution. And “look-back” laws will determine the amount owed even when the deceased kept no records. Lien holders are creditors who are paid first.
The Process of Making a Will
First I interview the client to understand their goals. Then, I draft the will and a form for personal property that is easy to change without changing the entire will. I suggest including instructions to guide the Personal Representative in locating assets and administering distribution. Finally the will is signed and witnessed.
In my opinion, wills reflect four times of life:
(1) young singles or couples,
(2) persons with minor children,
(3) persons with grown children, and
Many people also want to create a legacy by leaving money or assets to charities or causes. Trusts can be useful here. You should revisit your will as you move to the next stage of life.