Small Estate Affidavit Thresholds & Procedure in Montana
At a glance
| 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 to tangible personal property and instruments evidencing debts, obligations, stock, or choses in action. The Montana Judicial Branch packet expressly excludes land, a house, or a building |
| Signature formalities | Sworn and notarized. The Montana Judicial Branch packet directs the successor to sign and date the affidavit before a notary public; no separate witness signature appears |
| 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 |
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, Mont. Code Ann. § 72-3-1103 and § 72-3-1104, lets 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.
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 says "an affidavit." The Montana Judicial Branch packet directs the successor to sign and date it before a notary public and explains that the signature promises the affidavit is true. The form is keyed to the governing section (§ 72-3-1101). No separate witness signature appears in the statute or packet.
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 2026-08-10)
- 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 2026-08-10)
- Mont. Code Ann. §§ 72-3-1103 to -1104 (separate open-estate summary administration and closing statement) — https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0030/0720-0030-0110-0030.html and https://mca.legmt.gov/bills/mca/title_0720/chapter_0030/part_0110/section_0040/0720-0030-0110-0040.html (accessed 2026-08-10)
- Montana Judicial Branch, How to Use an Affidavit to Get Personal Property from an Estate — https://courts.mt.gov/external/library/forms/probate/collection_personal_property.doc (accessed 2026-08-10)
Source links
Every statute quoted above, linked, with the date we checked it.
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