Detailed answer — how the transfer works and the steps to take

When a spouse dies, whether and how you can create and record a new deed so a child becomes the owner depends mainly on three facts:

1. How title to the property was held before death (sole ownership, joint tenancy with right of survivorship, tenancy-in-common, etc.).
2. Whether the deceased left a valid will identifying the property transfer (and whether the will has been or needs to be admitted to probate).
3. Whether there are mortgages, liens, or other claims against the property that must be resolved before the title is clear.

1) Confirm how title was held

Get a certified copy of the decedent’s death certificate and pull the deed from the county clerk and recorder’s office where the property is located. The recorded deed tells you whether the decedent owned the property alone, jointly with right of survivorship, or as tenants in common. The correct next step depends on that answer.

2) Common title scenarios and what they mean

• Joint tenancy with right of survivorship (JTWROS): The surviving co-owner(s) typically becomes sole owner automatically on death. If you are the surviving spouse, you become owner and can then sign a new deed transferring the property to your child. To record that transfer you will usually record a certified death certificate and a new deed signed by the surviving owner.
• Sole ownership by the deceased spouse: If the property was in the decedent’s name alone, the property normally passes under the decedent’s will or under Montana’s intestacy rules if there is no will. To convey title to the child you generally must administer the estate — either by probate (formal or simplified procedures, if applicable) or by using any statutory affidavit remedies available for small or limited transfers.
• Tenants in common or other split ownership: Only the deceased owner’s share passes by will or intestacy. The surviving co-owner keeps their share. The deceased owner’s share may need probate to transfer to heirs.

3) If probate is required

When the property was solely in the decedent’s name (or when you need a court order to determine heirs or validate a will), you normally must open a probate case in the district court of the county where the decedent lived. Typical steps:

1. File a petition with the local Montana district court to admit the will (if any) and appoint a personal representative (executor) or to open administration if no will exists.
2. Provide the certified death certificate, the will (if any), and an inventory of estate assets, including the deed and legal description of the property.
3. The court issues letters of appointment (letters testamentary or letters of administration) to the personal representative.
4. The personal representative uses court authority to transfer title — typically by executing and recording a deed that conveys the real property to the beneficiary (the child) or by obtaining a court order directing transfer.

Montana’s probate laws govern these procedures (see Montana Code Annotated, Title 72 — Probate, Estates, and Protected Persons). For the general statutory scheme see the Montana Code Title 72 table of contents: https://leg.mt.gov/bills/mca/title_0720/.

4) When probate may not be necessary

Some transfers can occur without full probate:

• If the surviving spouse already owns the property by survivorship, the surviving spouse can execute a new deed to the child and record it (after producing a certified death certificate).
• Some Montana counties permit an affidavit process or an affidavit of heirship for limited situations to clear title when the estate is small and there are no disputes. Local acceptance varies. Check the county clerk/recorder or the title company for local practice.

5) Preparing and recording the deed

1. Choose the appropriate deed form — typically a quitclaim deed or a warranty deed — and include a correct legal description of the property (from the recorded deed or tax records).
2. Have the required grantor(s) sign the deed before a Montana notary public. If a personal representative signs, show the recorded letters of appointment or a certified copy from the court.
3. Complete any required affidavit of value or transfer documentation required by the county recorder.
4. Record the deed at the county clerk and recorder’s office where the property is located. Pay the recording fee. The recorder will index the deed to the grantee and grantor.
5. If there are mortgages or liens, contact the lender. You may need payoff or release documents or to refinance prior to a clean transfer of title to the child.

6) Other practical steps and checks

• Order a title search or contact a title company to confirm liens, easements, and that the intended transfer will produce clear title.
• Confirm exact legal description and parcel number to avoid recording errors.
• Check for any transfer taxes, inheritance or estate tax issues, and consult an accountant if you expect tax consequences.

For general guidance on filing probate papers and forms, the Montana Judiciary provides probate resources and local court contact information: https://courts.mt.gov/.

Helpful hints — practical checklist to move this forward

• Obtain 3–5 certified copies of the death certificate from the Montana Department of Public Health & Human Services or the local registrar; you will need them for banks, lenders, and the county recorder.
• Retrieve the original recorded deed from the county clerk and recorder where the property sits. Bring the deed to any title company, attorney, or the clerk/recorder’s office.
• Check the deed for any survivorship language or special beneficiary designation (that may control the transfer).
• If the title was held jointly and the surviving spouse is the co-owner, you can typically prepare a deed from the surviving spouse to the child; notarize and record it with the county recorder.
• If the property was solely in the deceased spouse’s name, consult the district court in the decedent’s county about probate filing requirements — or ask an attorney whether a simplified procedure applies.
• Contact the county clerk and recorder’s office before recording to confirm their required forms, recording fees, and any county-specific affidavits or cover sheets.
• If a mortgage exists, speak to the lender early — most lenders need to be involved before title changes can clear or before payoff/assumption occurs.
• Consider hiring a Montana attorney experienced in probate and real estate to prepare the deed or to open probate if the estate is not straightforward, or if heirs may dispute the transfer.

For county-specific recording information, search the recorder/clerk’s website for the county where the property is located or contact the office directly.