LAST WILL AND TESTAMENT
of
[TESTATOR FULL LEGAL NAME]
[// GUIDANCE: This template is drafted for use in the State of Montana and is intended to satisfy the execution, witness, and probate requirements set forth in Mont. Code Ann. §§ 72-2-522 – 524 (2023). Replace all bracketed items, delete Guidance comments, and review carefully before execution.]
TABLE OF CONTENTS
- Introductory Declaration
- Revocation of Prior Wills and Codicils
- Family Information
- Appointment of Personal Representative
- Payment of Debts, Taxes, and Expenses
- Specific Bequests
- Residuary Estate
- Nomination of Guardian for Minor Children (Optional)
- Fiduciary Powers of Personal Representative
- Bond Waiver
- Executor Indemnification & Liability Limitation
- No-Contest (In Terrorem) Clause
- Governing Law; Forum Selection; Jury Waiver
- General Provisions
- Attestation Clause
- Self-Proving Affidavit (Mont. Code Ann. § 72-2-524)
1. Introductory Declaration
I, [TESTATOR FULL LEGAL NAME], a resident of [COUNTY] County, Montana, being of sound mind and over eighteen (18) years of age, do hereby make, publish, and declare this instrument to be my Last Will and Testament (the “Will”), effective as of the date of my signature hereto (the “Effective Date”).
2. Revocation of Prior Wills and Codicils
I hereby revoke and annul all prior wills, codicils, and testamentary dispositions previously made by me.
3. Family Information
3.1 Spouse. I am [married / not married] to [SPOUSE FULL LEGAL NAME] (“Spouse”).
3.2 Children. I have the following children: [LIST FULL LEGAL NAMES AND DATES OF BIRTH].
3.3 Additional Descendants. References to “child,” “children,” “issue,” or “descendant” include any person hereafter born to or legally adopted by me.
4. Appointment of Personal Representative
4.1 Primary Appointment. I appoint [PRIMARY PERSONAL REPRESENTATIVE NAME], currently residing at [ADDRESS], as the Personal Representative (also referred to as “Executor”) of my estate.
4.2 Successor Appointment. If the Primary Personal Representative is unable or unwilling to serve, I nominate [SUCCESSOR PERSONAL REPRESENTATIVE NAME] as successor.
4.3 Independent Administration. My Personal Representative shall serve independently, without court supervision, to the fullest extent permitted by Mont. Code Ann. § 72-3-606.
5. Payment of Debts, Taxes, and Expenses
My Personal Representative shall pay from my residuary estate all enforceable debts, funeral expenses, administration costs, and estate or inheritance taxes lawfully owed by me or my estate, except debts secured by real or personal property, which shall pass subject to the underlying security interest unless the Personal Representative elects otherwise.
6. Specific Bequests
6.1 I give the following property, free of encumbrances unless otherwise stated, to the beneficiaries named below:
(a) [DESCRIPTION OF PROPERTY] to [BENEFICIARY NAME & RELATIONSHIP].
(b) [ADD ADDITIONAL BEQUESTS AS NEEDED].
6.2 Any specific bequest that fails (e.g., beneficiary predeceases me or property no longer owned by me) shall lapse into the Residuary Estate defined in Section 7.
7. Residuary Estate
7.1 Definition. All property not effectively disposed of herein, including lapsed bequests and accretions thereto, shall constitute my “Residuary Estate.”
7.2 Disposition. I give, devise, and bequeath my Residuary Estate to [RESIDUARY BENEFICIARY NAME(S)] in [equal / specified] shares, [per stirpes / per capita].
7.3 Contingent Residuary Beneficiary. If no named residuary beneficiary survives me, I give my Residuary Estate to [CONTINGENT BENEFICIARY OR CHARITY].
8. Nomination of Guardian for Minor Children (Optional)
If, at my death, any of my children are under eighteen (18) years of age, I nominate [PRIMARY GUARDIAN NAME] as guardian of the person and estate of such minor children. [SUCCESSOR GUARDIAN NAME] is nominated as successor guardian.
9. Fiduciary Powers of Personal Representative
In addition to all powers conferred by law, my Personal Representative shall have the broadest possible powers, including but not limited to the powers enumerated in Mont. Code Ann. § 72-3-606 and Title 72, Chapter 3, Part 8, to:
(a) sell, lease, exchange, or otherwise dispose of estate property;
(b) invest estate assets pursuant to reasonable business judgment;
(c) settle, compromise, or arbitrate claims;
(d) distribute assets in cash or in kind; and
(e) execute, acknowledge, and deliver any instruments necessary to carry out the foregoing.
[// GUIDANCE: Montana permits wide statutory powers; modify or limit as client circumstances require.]
10. Bond Waiver
No bond or other security shall be required of any Personal Representative, guardian, or trustee appointed herein, unless a court of competent jurisdiction specifically orders otherwise for good cause shown.
11. Executor Indemnification & Liability Limitation
11.1 Indemnification. My estate shall indemnify and hold harmless each Personal Representative or guardian from any and all liability, expense, or loss (including reasonable attorney fees) arising from the good-faith administration of my estate, except for losses caused by such fiduciary’s gross negligence, willful misconduct, or bad faith.
11.2 Liability Cap. Any personal liability of a fiduciary under this Will shall be limited to the value of the assets of my estate under such fiduciary’s control at the time the liability is adjudicated.
12. No-Contest (In Terrorem) Clause
If any beneficiary directly or indirectly contests this Will or any of its provisions, or institutes or joins in a proceeding to impair or invalidate any part of it, any interest given to that beneficiary shall be forfeited and pass as if such beneficiary had predeceased me.
[// GUIDANCE: Montana courts will enforce in terrorem clauses unless probable cause exists for the contest.]
13. Governing Law; Forum Selection; Jury Waiver
13.1 Governing Law. This Will shall be construed, regulated, and administered according to the laws of the State of Montana.
13.2 Exclusive Forum. All matters relating to the administration of my estate, including any contest or construction proceeding, shall be heard exclusively in the District Court of [COUNTY] County, Montana sitting in probate.
13.3 Jury Waiver. To the extent a jury trial might otherwise be available, the parties agree that probate matters shall be heard without a jury.
14. General Provisions
14.1 Simultaneous Death. If a beneficiary does not survive me by at least one hundred twenty (120) hours, that beneficiary shall be deemed to have predeceased me for all purposes of this Will, per Mont. Code Ann. § 72-2-114.
14.2 Spendthrift Protection. No interest under this Will shall be assignable by any beneficiary nor subject to the claims of such beneficiary’s creditors, to the maximum extent permitted by law.
14.3 Headings. Section headings are for convenience only and do not affect substantive construction.
14.4 Severability. If any provision is held invalid, the remaining provisions shall continue in full force to the extent consistent with my intent.
15. Attestation Clause
We, the undersigned witnesses, hereby declare that on the date set forth below [TESTATOR FULL LEGAL NAME], the Testator, declared to us that this instrument is the Testator’s Last Will and Testament and signed it (or acknowledged a previously affixed signature) in our presence. We, at the Testator’s request, in the Testator’s presence, and in the presence of each other, have subscribed our names as witnesses.
16. Self-Proving Affidavit
State of Montana
County of [COUNTY]
Before me, the undersigned authority, on this day personally appeared [TESTATOR FULL LEGAL NAME], [WITNESS #1 NAME], and [WITNESS #2 NAME], known to me to be the Testator and the witnesses, and all, being duly sworn, did state as follows:
- The Testator declared the instrument to be the Testator’s Last Will and Testament and signed it (or acknowledged a previously made signature) in our presence.
- Each witness, in the presence of the Testator and each other, signed the Will as a witness.
- The Testator, to the best of our knowledge, was at least eighteen (18) years of age, of sound mind, and under no constraint or undue influence.
Subscribed, sworn to, and acknowledged before me on this _ day of _, 20___.
Notary Public for the State of Montana
My commission expires: ____
SIGNATURE PAGE
Testator
[TESTATOR FULL LEGAL NAME]
Date: _______
Witnesses
-
[WITNESS #1 NAME]
Address: _____
Date: ____ -
[WITNESS #2 NAME]
Address: _____
Date: ____
[// GUIDANCE: Secure all signatures in a single sitting. Use indelible ink. A self-proving affidavit is strongly recommended for expedited probate under Mont. Code Ann. § 72-2-524. Retain the original in a safe, accessible location and provide copies to the Personal Representative and legal counsel.]