Montana: Petition to Probate a Will Requirements

Requirements one by one

Governing law and proceeding type

Montana uses both informal and formal probate. MCA § 72-3-102 says a will must
be declared valid by “an order of informal probate by the clerk or an adjudication
of probate by the court” before it proves a property transfer or nominates an
executor. Informal proceedings are clerk proceedings without general notice;
formal proceedings occur before a judge with notice. Probate and appointment may
be combined, but formal testacy may proceed without requesting an appointment
(MCA § 72-3-102; MCA § 72-3-121; MCA § 72-3-302).

Court and venue

The court is the district court. The first proceeding belongs in the county of
the decedent's domicile at death. If the decedent was not domiciled in Montana,
any county containing the decedent's property may hear it. A first informal case
filed in the wrong county may be transferred after notice to its proponent (MCA
§ 72-1-202; MCA § 72-3-112).

Who may petition

MCA § 72-3-105 lets a person interested in the estate apply to the clerk or
petition the court. “Interested person” includes heirs, devisees, children,
spouses, creditors, beneficiaries, people with an estate property right or
claim, persons with appointment priority, and fiduciaries representing them;
the precise set depends on the matter being decided (MCA § 72-1-103; MCA §
72-3-105).

Petition contents

The filing must be verified. For either ordinary informal probate or informal
appointment, § 72-3-202 requires the applicant's interest; the decedent's name,
death date, age, domicile, spouse, children, heirs, devisees, and known minor
ages; nondomiciliary venue facts; existing representatives; notice demands; and
timeliness. A testate application adds the applicant's belief in valid execution,
diligent inquiry for revocation, and belief that the instrument is the last will.
If appointment is requested, it identifies the proposed representative, address,
and priority (MCA §§ 72-1-310, 72-3-201 to -203).

A formal petition adopts those core facts, identifies the particular instrument,
and requests a testacy and heir order after notice and hearing. Formal appointment
may be requested in the same proceeding. Under MCA § 72-3-319, formal appointment
is decided after notice to interested persons and priority claimants.

Original will, copy, and lodging

For ordinary original informal probate, § 72-3-203 requires the original will to
be in the court's possession or accompany the application. The authenticated-copy
options in that section concern wills probated or filed in another jurisdiction,
not an ordinary photocopy of a Montana original.

Formal probate uses the original with the court or attached to the petition. If
the original or a qualifying authenticated foreign copy is unavailable, the
petition must state the will's contents and allege that it is lost, destroyed, or
otherwise unavailable; that is an evidentiary departure from the ordinary route.

Filing or production deadline

The ordinary outside limit is three years after death, subject to § 72-3-122's
listed exceptions. A proceeding contesting an informally probated will may be
brought within the later of twelve months after informal probate or three years
after death. Informal probate itself cannot issue until at least 120 hours after
death (MCA § 72-3-215).

The custodian's clock is different. Section 72-2-536 requires delivery “with
reasonable promptness” after death and an interested person's request. It sets no
fixed ten-day or thirty-day period, and willful withholding can create damages or
contempt exposure.

Proof and self-proving route

In informal probate, a will with the required signatures and a qualifying
attestation clause is probated without further proof. Otherwise the clerk may
assume execution from the document's appearance or accept a sworn statement or
affidavit from any person who knows the execution circumstances, even a
nonwitness (MCA § 72-3-213).

An unopposed formal case may be decided on the pleadings or after an open-court
hearing. If execution evidence is needed, one attesting witness's affidavit or
testimony suffices, and other evidence may substitute if that proof is unavailable.
After notice and any necessary hearing, § 72-3-313 directs formal probate when
the statutory findings are made.
In a contested execution case, filing a self-proved will supplies execution
without witness testimony unless fraud or forgery affects the acknowledgment or
affidavit. A witnessed but non-self-proved will ordinarily requires one attesting
witness who is in Montana, competent, and able to testify, though other evidence
and a signed attestation clause remain relevant under MCA § 72-3-321. The
unopposed proof route is in MCA § 72-3-307.

Notice, hearing, and objections

Informal probate is not preceded by notice to everyone. MCA § 72-3-211 requires
notice only to people who demanded it and any existing personal representative.
Informal appointment adds people with an unwaived prior or equal appointment right.
Each section then says no other advance notice is required (MCA § 72-3-221).
The clerk also must find that a related will was admitted and that the proposed
representative has priority before making an appointment subject to qualification
and acceptance (MCA § 72-3-222; MCA § 72-3-225).

Formal testacy requires a court-set hearing. The petitioner gives notice to the
surviving spouse, children, other heirs, devisees and executors named in relevant
wills, any existing representative, and demandants. Mail or personal delivery is
ordinarily at least fourteen days before the hearing. Unknown persons and known
persons whose addresses cannot be found receive publication under MCA § 72-3-305.
Anyone opposing probate must put the objections in the pleadings under MCA § 72-3-308.
The ordinary notice methods and timing are in MCA § 72-1-301.

Executor, bond, and letters

The person given priority by the probated will, including its nominee, ranks
first. A representative must be at least eighteen and not be found unsuitable in
a formal proceeding. A person entitled to letters may renounce by filing a
writing (MCA § 72-3-501; MCA § 72-3-502; MCA § 72-3-504).

Appointment is not yet letters. MCA § 72-3-512 requires the appointee, before
receiving letters, to file a statement accepting the office and any required
bond. Informal appointment usually does not require bond unless the will requires
it, a bond demand applies, or a special administrator is involved. In a formal
case the court may require bond, but a will's bond waiver generally controls unless
an interested person requests bond and the court finds it desirable under MCA § 72-3-513.

What trips people up

• Informal does not mean no filing requirements. The application is verified,
  must contain the statewide facts, and ordinarily needs the original will.
• The three-year limit is not the custodian's delivery rule. Custodian delivery
  is request-triggered and due with reasonable promptness; probate has a separate
  outer limit and exception structure.
• An executor nomination does not itself create authority. The will must be
  probated, the nominee appointed, and acceptance and any required bond filed
  before letters issue.
• A photocopy is not the ordinary informal route. The authenticated-copy
  provisions address out-of-state wills; a missing Montana original moves the
  matter into the formal unavailable-will allegations and proof route.

Common questions

Does every Montana probate petition require a hearing?

No. Informal probate is handled by the clerk without a general hearing if the
statutory findings are met. A formal testacy petition requests an order after
notice and hearing.

Who must receive notice before informal probate?

A person who filed a demand for notice and any existing personal representative.
If informal appointment is also requested, people with an unwaived prior or equal
appointment right also receive notice.

Can the named executor receive letters immediately after filing?

No. Even after the required 120-hour post-death period, the will must be admitted,
the nominee must be appointed and qualified, and the nominee must file acceptance
and any required bond before receiving letters.

Statutes and sources

• Mont. Code Ann. §§ 72-1-103, 72-1-202, 72-1-301, and 72-1-310 — definitions,
  district-court jurisdiction, notice timing, and verification.
• Mont. Code Ann. § 72-2-536 — custodian delivery with reasonable promptness.
• Mont. Code Ann. §§ 72-3-102, 72-3-105, 72-3-112, and 72-3-121 to -122 — probate
  order, standing, venue, combination, and time limits.
• Mont. Code Ann. §§ 72-3-201 to -225 — informal application, original will,
  proof, limited notice, 120-hour wait, and appointment.
• Mont. Code Ann. §§ 72-3-301 to -321 — formal petition, notice, hearing, proof,
  objections, order, and appointment.
• Mont. Code Ann. §§ 72-3-501 to -513 — qualification, priority, renunciation,
  acceptance, bond, and letters.

All official section URLs and verbatim excerpts appear in the source records
above; accessed 2026-08-09.