MT Bar Wills Trusts and Estates 1 — Questions and Answers
Question 1: Under the Montana Uniform Probate Code, a valid attested will requires:
- Three witnesses and notarization
- The testator's signature and signature of two competent witnesses (Correct answer)
- Only notarization without witnesses
- Filing with the probate court before death
Correct answer: The testator's signature and signature of two competent witnesses
Montana follows the UPC requiring the testator's signature and acknowledgment before two witnesses who then sign in the testator's presence.
Question 2: A holographic will in Montana is valid if it is:
- Typed and signed before two witnesses
- Entirely in the testator's own handwriting and signed (Correct answer)
- Notarized and filed with the county clerk
- Signed by the testator and one witness
Correct answer: Entirely in the testator's own handwriting and signed
Montana recognizes holographic wills under MCA § 72-2-522, requiring that the signature and material portions be in the testator's handwriting.
Question 3: Under Montana's UPC, intestate succession distributes property of a person who dies without a will first to:
- The state of Montana
- The surviving spouse and descendants (Correct answer)
- Parents and siblings equally
- Closest living relative without preference
Correct answer: The surviving spouse and descendants
Montana's intestacy statute distributes the estate first to the surviving spouse and descendants, with the specific shares depending on whether the decedent leaves children from a prior relationship.
Question 4: Testamentary capacity in Montana requires that the testator:
- Have an attorney draft the will
- Be of legal age and sound mind at the time of execution (Correct answer)
- Be free of all prescription medications
- Have filed a pre-death notice of intent
Correct answer: Be of legal age and sound mind at the time of execution
Montana requires testators to be at least 18 and of sound mind — meaning they understand the nature of making a will, their property, their heirs, and how the will distributes property.
Question 5: In Montana, a will may be revoked by:
- Oral declaration before two witnesses only
- Physical act such as burning or tearing, or by a subsequent valid will (Correct answer)
- Failure to file the will with the probate court
- Marriage of the testator after will execution
Correct answer: Physical act such as burning or tearing, or by a subsequent valid will
A Montana will may be revoked by physical act (burning, tearing, destroying) with revocatory intent, or by a subsequent will that expressly or implicitly revokes the prior one.
Question 6: The elective share available to a surviving spouse in Montana allows them to claim:
- The entire estate regardless of the will
- A percentage of the augmented estate based on years of marriage (Correct answer)
- Exactly one-half of all marital property
- Only the intestate share minus bequests received
Correct answer: A percentage of the augmented estate based on years of marriage
Montana's elective share under MCA § 72-2-220 entitles a surviving spouse to a percentage of the augmented estate that increases with the length of the marriage, up to 50% after 15 years.
MT Bar Wills Trusts and Estates 1
Under the Montana Uniform Probate Code, a valid attested will requires: