Montana: Revocable Living Trust Creation Requirements

Requirements one by one

Governing law, capacity, and intent

Mont. Code Ann. § 72-38-101 names chapter 38 the Montana Uniform Trust Code.
Section 72-38-601 uses will capacity; § 72-2-521 requires age 18 and sound
mind. Section 72-38-402 separately requires capacity and intent, while
§ 72-38-406 voids the part induced by fraud, duress, or undue influence.

Creation, property, beneficiaries, and roles

Section 72-38-401 permits a lifetime or death-effective transfer to another
trustee, an owner's declaration over identifiable property, or exercise of a
power of appointment. Property includes real or personal, legal or equitable
interests. The route matters: a declaration covers identified owner-held
property; a transfer requires the applicable asset transfer.

Section 72-38-402 requires a definite beneficiary ascertainable now or later,
a valid selection power, or a statutory exception. Section 72-38-404 requires
a lawful, possible, public-policy-compliant purpose benefiting beneficiaries.
The settlor may serve as trustee and beneficiary, but cannot be both sole
trustee and sole beneficiary.

A separate trustee accepts under § 72-38-701 through the trust method or, when
absent or nonexclusive, delivery, powers or duties, or other conduct.

Required writing, signatures, witness, and notary

Montana does not recognize an ordinary oral trust. Section 72-38-407 requires
a writing signed by the trustee or settlor, or by that person's agent when
authorized in writing, unless the trust arises by law. It does not require
both signatures, witnesses, or a notary.

For real property, § 70-20-101 independently requires a subscribed writing for
the interests it specifies. Signing the trust still does not replace a deed or
other transfer required for a particular home or asset.

Revocability, registration, and recording

Section 72-38-602 makes a trust revocable unless expressly irrevocable, except
for an instrument executed before October 1, 1989. The settlor may use the
trust method. If none exists, the fallback is a writing delivered to the
trustee manifesting clear and convincing intent. An agent needs express
authority in both the trust and power of attorney.

The current Trust Code states no court-registration step for creation. Section
72-38-1013 instead permits an optional certification and requires
acknowledgment on request so it may be recorded. Under § 70-21-302, a properly
acknowledged or proved real-property conveyance gives constructive notice from
filing with the county clerk. Certification does not replace the conveyance.

Practical distinction

The trust writing, trustee acceptance, certification, and each asset's
transfer instrument do different work. Listing property on Schedule A does
not automatically complete every title transfer.

Statutes and sources

• Mont. Code Ann. § 72-38-101 and Mont. Code Ann. § 72-38-103 — code title and definitions.
  Official current text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-401, Mont. Code Ann. § 72-38-402,
  Mont. Code Ann. § 72-38-404, and Mont. Code Ann. § 72-38-406 —
  creation, beneficiary, purpose, and validity rules. Official current
  text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-407 — mandatory writing and permitted signers.
  Official current text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-601 and Mont. Code Ann. § 72-2-521 — trust
  and will capacity. Official current
  text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-602 — revocation and amendment. Official
  current text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-701 — trustee acceptance. Official current
  text
  (accessed 2026-07-30).
• Mont. Code Ann. § 72-38-1013 — certification. Official current
  text
  (accessed 2026-07-30).
• Mont. Code Ann. § 70-20-101 and Mont. Code Ann. § 70-21-302 — land
  writing and constructive notice. Official current
  text
  (accessed 2026-07-30).