Montana: Small Estate Affidavit Thresholds & Procedure
The short answer
Montana lets an heir or beneficiary collect a decedent's personal property with a sworn affidavit, no court filing, once 30 days have passed since death and the probate estate is worth $100,000 or less. It works whether the decedent left a will or not, but it never reaches real estate: land, a house, or a building always needs a different process. A separate, smaller carve-out lets the state's own Department of Revenue refund unclaimed property worth $5,000 or less to a successor regardless of the estate's overall size.
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This is the general rule in Montana. Ezel applies current Montana law to your specific facts and answers with citations to the statutes.
| Governing law | Mont. Code Ann. § 72-3-1101 (collection of personal property by affidavit) and § 72-3-1102 (effect of the affidavit); separately, §§ 72-3-1103 and 72-3-1104 let a personal representative in an estate that's ALREADY open under summary administration close it out with a sworn statement, a distinct later-stage shortcut, not a way to avoid opening probate at all |
|---|---|
| Dollar threshold | $100,000, a flat figure raised from $50,000 by a 2023 amendment (2023 Mont. Laws ch. 453), not indexed for inflation. A narrow separate carve-out in § 72-3-1101(2) lets the Department of Revenue refund UNCLAIMED property (a distinct escheat-type category under Title 70, chapter 9, part 8) of $5,000 or less to a successor regardless of the estate's overall value, a different, narrower exception, not a general alternate threshold |
| Court filing required? | No: the affidavit is presented directly to the bank, employer, transfer agent, or other holder of the property, never filed with any court. The separate §§ 72-3-1103/-1104 mechanism only applies once an estate is already open under court-supervised summary administration with an appointed personal representative, who then files a sworn closing statement with the court itself |
| Waiting period after death | 30 days after the decedent's death, measured from the date of death itself |
| Works with a will, intestacy, or both? | Both: § 72-3-1101 applies to 'a person claiming to be the successor of the decedent' without separately defining that term by will-beneficiary or intestate-heir status, so it works the same way whichever applies |
| Does it cover real property? | No. The affidavit is limited by its own text to 'tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action': no mention of real estate anywhere in the section. Montana's own state courts' self-help materials say so explicitly: 'You cannot use this packet for real property, like land or a house' |
| Signature formalities | Sworn and notarized. The statute's own text just calls for 'an affidavit,' but Montana's official court-approved form (Affidavit for Collection of Personal Property, courts.mt.gov) has the affiant swear the statements 'after being first duly sworn' and includes a full notary acknowledgment block; no separate witness requirement appears anywhere |
| Protection for the bank/holder | Strong and explicit. § 72-3-1102 discharges the person who pays, delivers, transfers, or issues property under the affidavit 'to the same extent as if the person dealt with a personal representative,' with no duty to inquire into the truth of any statement in the affidavit. The person who received the property, not the holder who handed it over, stays answerable and accountable to any personal representative or other person with a superior right |
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Requirements one by one
Governing law
Mont. Code Ann. § 72-3-1101 creates the affidavit, and § 72-3-1102 spells
out the protection it gives a bank or other holder that relies on it. A
separate pair of sections, §§ 72-3-1103 and 72-3-1104, let a personal
representative close out an estate that's ALREADY open under summary
administration with a sworn statement — a shortcut for an open case, not
an alternative way to avoid opening probate in the first place.
Dollar threshold
$100,000, a flat figure that was raised from $50,000 by a 2023 amendment
and hasn't been indexed for inflation since. There's a separate, much
narrower carve-out buried in the same section: if the amount involved is
unclaimed property (the kind escheated to the state under Montana's
unclaimed-property law) worth $5,000 or less, the Department of Revenue
can refund it to a successor regardless of how large the estate is
overall — a specific exception, not a general second track.
Court filing required?
No. The affidavit is a private document presented straight to the bank,
employer, stock transfer agent, or whoever else is holding the property —
no court ever reviews it. The separate §§ 72-3-1103/-1104 mechanism only
comes into play for an estate that's already open in a court-supervised
summary administration, where the personal representative files a sworn
closing statement with the court itself.
Waiting period after death
30 days. The affidavit can't be presented until 30 days have passed since
the date of death.
Works with a will, intestacy, or both?
Both. The statute covers "a person claiming to be the successor of the
decedent" without separately restricting that to a will beneficiary or an
intestate heir, so it applies the same way regardless of which situation
applies.
Does it cover real property?
No. The statute limits the affidavit to "tangible personal property or an
instrument evidencing a debt, obligation, stock, or chose in action" —
nothing about real estate. Montana's own courts make the point directly
in their self-help materials: you cannot use this affidavit to collect
land, a house, or a building.
Signature formalities
Sworn and notarized. The statute itself just says "an affidavit," but
Montana's official court-approved form has the affiant swear the
statements "after being first duly sworn" and includes a full notary
acknowledgment block for the notary's signature, printed name, and
commission expiration. No separate witness requirement appears in either
the statute or the form.
Protection for the bank/holder
Strong and explicit. § 72-3-1102 discharges anyone who pays, delivers,
transfers, or issues property under the affidavit "to the same extent as
if the person dealt with a personal representative," with no duty to
check whether the affidavit's statements are actually true. The person
who received the property — not the bank that handed it over — is the one
who stays answerable to any personal representative or other person with
a superior right.
What trips people up
The affidavit's real-property exclusion is absolute — it doesn't matter
how modest the house or land is, or whether it's the only real property
in the estate; it's simply outside what this document can transfer.
People sometimes also confuse the general $100,000 threshold with the
much narrower $5,000 unclaimed-property carve-out, which is a different
mechanism aimed at property that's already escheated to the state, not a
bigger version of the small-estate affidavit.
Common questions
Can I use the affidavit for a vehicle?
The affidavit itself can support collecting personal property generally,
but transferring a vehicle's title specifically requires a separate
Department of Justice Motor Vehicle Division form (an Application for
Title of a Vehicle by Right of Survivorship), not the small-estate
affidavit alone.
What if the estate is worth $100,000 in personal property but also
includes a house?
The house itself can never be transferred through this affidavit no
matter what the total value is — real property always needs a probate
case or another mechanism designed for real estate.
Do I need a lawyer to use this affidavit?
Not necessarily — Montana's courts publish a free, fillable version of
the form along with instructions specifically so people can use it
without a lawyer, though the instructions themselves recommend consulting
one if the situation is unclear.
Statutes and sources
- Mont. Code Ann. § 72-3-1101 (Collection of personal property by
affidavit) —
https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0010/0720-0030-0110-0010.html
(accessed 2026-07-06) - Mont. Code Ann. § 72-3-1102 (Effect of affidavit) —
https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0020/0720-0030-0110-0020.html
(accessed 2026-07-06) - Official Affidavit for Collection of Personal Property of the Decedent
(Montana state courts form) —
https://www.montana.edu/estateplanning/affidavitforcollectionofpersonalpropertyforpdffillableform.pdf
(accessed 2026-07-06)
Source links
Every statute quoted above, linked, with the date we checked it.
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