Opinions and Legal Insights

Who Are Next Of Kin In Montana?

The term “next of kin” is used synonymously with heirs, which is defined in Montana probate law to mean “persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.”  See Montana Code §72-1-103(22).  Next of kin in Montana include the decedent’s:

  1. Surviving spouse
  2. Descendants
  3. Parents
  4. Siblings
  5. Grandparents
  6. Next closest degree of kinship

 

The intestate estate is any part of a decedent’s estate not effectively disposed of by will.  If decedent has no will at all, the estate is intestate.  See Montana Code § 72-2-111

What Next Of Kin Inherit Under Montana Intestate Succession Law?

The next of kin that inherit in Montana depend on the other survivors of the decedent.  The next of kin most closely related to the decedent inherit before more remote relatives, starting with the surviving spouse.

Survivors of Decedent

Share of Intestate Estate

Spouse only

–          Spouse inherits entire estate

Spouse and descendants, and all of the descendants are also descendants of the surviving spouse, and there is no other descendant of the surviving spouse who survives the decedent

–          Spouse inherits entire estate

Spouse and parent, no descendants

–          Spouse inherits first $300,000, plus ¾ of any balance

–          Parent(s) inherits remaining balance

Spouse and descendants, all of descendants are descendants of surviving spouse, and surviving spouse has one or more surviving descendants who are not descendants of the decedent

–          Spouse inherits first $225,000, plus ½ of any balance of the intestate estate

–          Descendants share remaining balance

Spouse and descendants, one or more of decedent’s surviving descendants are not descendants of the surviving spouse

–          Spouse inherits first $150,000, plus ½ of any balance of the intestate estate

–          Descendants share remaining balance

Descendants, no surviving spouse

–          Descendants inherit by representation

Parents, no descendants or surviving spouse

–          Parents inherit equally if both survive or all to surviving parent

Siblings and descendants of siblings, no parents, descendants, or surviving spouse

–          Siblings inherit by representation

One or more grandparents or descendants of grandparents

–          ½ to paternal grandparents equally if both survive; the surviving paternal grandparent; or the descendants of the paternal grandparents or either of them if both are deceased by representation

–          The other ½ to the maternal relatives in the same manner

–          If not survived by anyone on either the paternal or maternal side, the entire estate to the relatives on the other side in the same manner as the ½

None of the above

–          To the person of the closest degree of kinship with decedent (if more than one person, they share equally)

The laws of intestate succession in Montana can be found in Montana Code §§ 72-2-112 and 72-2-113.

What Do Next Of Kin Inherit In Montana?

Montana next of kin in line to inherit from an intestate estate only inherit probate assets.

Next of kin do not inherit non-probate assets simply because of their status as next of kin intestate heirs.  Non-probate assets include assets such as bank accounts with a named pay-on-death beneficiary, and assets held in a trust.  These assets pass to the named beneficiaries, and not through the probate estate.  See the Probate and Non-Probate Assets Chart.

Is There a Survivorship Requirement In Montana?

Yes, there is a survivorship requirement to inherit under Montana intestate succession law.  Montana Code §72-2-114 requires that an heir survive the decedent by 120 hours in order to inherit under the law of intestate succession:

An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under 72-2-115.

A Montana probate lawyer can help you determine your status and rights as next of kin.