Revocable Living Trust Creation Requirements in Montana

At a glance

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).