MT Bar Wills, Trusts & Estates 1 — Questions and Answers
Question 1: Under Montana's Uniform Probate Code (MCA Title 72), a valid will requires the testator to be at least:
- 16 years old
- 18 years old or an emancipated minor (Correct answer)
- 21 years old
- Any age if married
Correct answer: 18 years old or an emancipated minor
MCA § 72-2-521 requires the testator to be at least 18 years of age or an emancipated minor and of sound mind to execute a valid will.
Question 2: In Montana, a holographic will is valid if it is:
- Typed and signed by the testator
- Written entirely in the testator's handwriting and signed, with no witness requirement (Correct answer)
- Witnessed by two witnesses and notarized
- Notarized only
Correct answer: Written entirely in the testator's handwriting and signed, with no witness requirement
MCA § 72-2-522(2) validates holographic wills that are signed and whose material portions are in the testator's own handwriting, with no witness requirement.
Question 3: Under Montana law, which of the following would cause a gift in a will to lapse?
- The beneficiary predeceases the testator and no anti-lapse statute applies (Correct answer)
- The testator changes their mind before death
- The will is contested by an heir
- The estate has insufficient assets
Correct answer: The beneficiary predeceases the testator and no anti-lapse statute applies
A testamentary gift lapses when the beneficiary predeceases the testator; Montana's anti-lapse statute (MCA § 72-2-605) saves gifts to descendants of the testator's grandparents who predecease the testator.
Question 4: In Montana, a surviving spouse's elective share entitles the spouse to:
- One-half of the entire estate regardless of the length of marriage
- A supplemental amount based on a percentage of the augmented estate keyed to years of marriage (Correct answer)
- One-third of the probate estate only
- Nothing if a prenuptial agreement exists
Correct answer: A supplemental amount based on a percentage of the augmented estate keyed to years of marriage
Montana adopted the Uniform Probate Code elective share (MCA § 72-2-222), which provides a sliding scale from 3% to 50% of the augmented estate based on the length of the marriage.
Question 5: Under Montana's Uniform Probate Code, intestate property of a decedent who dies leaving a spouse and children (all of the spouse) passes:
- Entirely to the spouse (Correct answer)
- Half to the spouse and half to the children equally
- Entirely to the children
- One-third to the spouse and two-thirds to the children
Correct answer: Entirely to the spouse
Under MCA § 72-2-212, if the decedent's surviving spouse is the parent of ALL the decedent's children, the spouse inherits the entire intestate estate.
Question 6: In Montana, a trust is generally created by:
- Filing a trust deed with the county clerk
- A written instrument signed by the settlor or a court order (Correct answer)
- Oral declaration alone in all cases
- Recording a trust document with the Secretary of State
Correct answer: A written instrument signed by the settlor or a court order
Montana's Uniform Trust Code (MCA § 72-38-401) requires a trust to be created by a written instrument executed by the settlor, or by a court order; oral trusts are limited to personal property trusts under specific conditions.
MT Bar Wills, Trusts & Estates 1
Under Montana's Uniform Probate Code (MCA Title 72), a valid will requires the testator to be at least: