Including Out-of-State Real Estate in a Montana Will | Montana Probate

Detailed Answer

This section explains, under Montana law, what you need to know and do to make sure a house you own outside Montana is covered by your Montana will. It covers validity of the will, how different states treat real property, practical steps to draft a clear devise, and likely post-death procedures.

Which law controls: your will or the location of the house?

Two different legal rules apply:

Formal validity of your Montana will: Montana rules determine whether your will was properly executed if you die domiciled in Montana or the will is probated here.
Transfer of real property (the house): the law of the state where the house is located (the situs state) typically controls how that real property transfers at death. That state can require local probate or other steps to change title to the new owner.

In short: you can dispose of out-of-state real estate by a Montana will, but the property’s state may require additional procedures (often called ancillary probate) to transfer title.

Montana statute resources

Review Montana’s probate and wills provisions at the Montana Code Online: https://leg.mt.gov/bills/mca/title_72/. That site contains Montana’s statutes governing wills, probate administration, and related fiduciary duties.

Practical steps to include the out-of-state house in your Montana will

Identify the property precisely. Include the full legal description, parcel/tax ID, and the address. Clear identification avoids disputes later.
Name the devisee (beneficiary) clearly. Use full names and backup beneficiaries (contingent beneficiaries) if your primary beneficiary cannot inherit.
Specify any conditions or shares. State whether the beneficiary receives the property outright, subject to debts, or as a life estate, etc.
Address mortgages, liens, and costs. Clarify whether the devisee takes the property subject to debts or whether debts should be paid from other estate assets.
Choose an executor familiar with ancillary probate or name co-executors in the situs state. The executor will likely need authority to handle probate actions in the other state.
Consider a pour-over to a trust. If you have a revocable living trust that owns the out-of-state house, the trust can avoid ancillary probate. Having the will pour assets into the trust can simplify transfer if the property is titled in the trust before death.
Sign the will following Montana execution rules. A will that is correctly executed under Montana law when you are domiciled in Montana will generally be valid here. See Montana statutes at the link above for formal requirements.
Keep records and copies of deeds and title insurance. Your executor will need these documents to open probate and to work with the county recorder/tax office in the property’s state.

Alternatives that may avoid ancillary probate

Depending on the other state’s laws, you may use methods that transfer title at your death without local probate:

Transfer-on-death or beneficiary deed (if the situs state allows it). This is a deed recorded that names a beneficiary who gets title at your death.
Holding title as joint tenants with right of survivorship or tenancy by the entirety (if applicable). Joint ownership with right of survivorship can pass title automatically, but it has estate, tax, and creditor consequences.
Retitling the property into a revocable living trust (if accepted by the situs state). A properly funded trust can often avoid probate.

Each option has pros and cons. For example, joint ownership can expose the property to a co-owner’s creditors, and beneficiary deeds are not available in every state.

What happens after you die: probate and ancillary administration

If the house is in another state, the executor appointed in Montana will usually open a Montana probate for assets located in Montana. To transfer the out-of-state house, the executor will typically need to open ancillary probate in the state where the house is located. Ancillary probate allows a local court to confirm title transfer under that state’s laws. Ancillary administration means extra time and costs (local counsel fees, filing fees, potential publication requirements).

Common pitfalls to avoid

Using vague property descriptions that lead to disputes.
Assuming a Montana will alone will change title without any local action in the property state.
Failing to consider federal or state tax consequences, or creditor claims in the situs state.
Relying on joint ownership without understanding how that affects control during your lifetime and exposure to others’ creditors.

When to consult a lawyer

Talk with a Montana estate attorney if you own real estate in another state. Also consult a lawyer licensed in the state where the house sits before making major changes to title or estate plans. Practical reasons to consult counsel include:

You want to avoid ancillary probate and need to know which alternatives are valid in the situs state.
Your estate includes mortgages, liens, or complex title issues.
You expect a will contest, family disputes, or complicated tax concerns.

Helpful Resources

Montana statutes on probate and wills: https://leg.mt.gov/bills/mca/title_72/
County recorder or assessor in the state where the house is located – for legal description and lien info.

Helpful Hints

Always include the full legal description or parcel number, not just the street address.
Name alternate beneficiaries and successor executors to reduce delays if primary choices cannot serve.
Check whether the property state permits beneficiary deeds or transfer-on-death instruments—these can streamline transfer.
If using a trust, confirm the property is properly retitled into the trust while you are alive.
Keep deeds, mortgage statements, title insurance, and property tax records organized for your executor.
Coordinate with counsel in both Montana and the property’s state when you change ownership or estate documents.

Disclaimer

This information is educational and does not constitute legal advice. Laws vary by state and facts matter. Consult a licensed Montana attorney and, if the house is located outside Montana, an attorney in that state before finalizing estate documents.