Writing a Will: Plan for the Future

by Marsha Goetting

Did you know that how you’ve titled your real and personal property affects who receives it after you die?

Title can also have unintended consequences for your survivors. Baby boomers take note: You need to take appropriate action to see that your hard-earned assets are distributed according to your wishes. If you don’t, Montana statutes will determine who receives what. Let’s examine three situations to see how informed you are about Montana intestacy statutes (dying without a will).

Property titled in sole ownership in a marital situation; no written will.

Jack died without writing a will. All property valued at $800,000 was in his name only. Jack’s survivors are his wife and parents. What amount does Jack’s wife receive?

  1. $800,000.
  2. $650,000.
  3. $400,000.
  4. None, all passes to the state of Montana because Jack didn’t write a will.

Most Montanans believe that Jack’s wife receives all $800,000. Wrong. Why? Because the Montana Uniform Probate Code provides for the surviving spouse to receive the first $200,000 and three-fourths of the balance. The remaining one-fourth passes equally to his parents. Jack’s wife receives $650,000 while Jack’s father and mother each receive $75,000.

Property titled in joint tenancy with right of survivorship; no written will.

Assume Tim and Sharon, married with no children, titled all their property in joint tenancy with right of survivorship. They had no written will. As a result of an automobile accident Tim died immediately and Sharon passed away three days later. Who receives their property?

  1. State of Montana, because they had no written will.
  2. Tim’s parents.
  3. Sharon’s parents.
  4. Half to Tim’s parents and half to Sharon’s parents.

Senior Adult Couple Going Over Papers in Home with AgentMost people think Sharon’s parents would receive the property because she survived Tim by three days. But half the property passes to Tim’s parents and half to Sharon’s parents. The UPC states that if property is held in joint tenancy with right of survivorship and neither survives the other by 120 hours, the property is split equally between their heirs. But if Sharon survives until the eighth day and dies, Sharon’s parents receive the property. That’s because Sharon lived beyond 120 hours and became the heir. Therefore, after her death the property passed to her parents. If Sharon dies immediately and Tim dies on the eighth day, Tim’s parents get the property.

Few Montanans are aware that by titling property in joint tenancy with right of survivorship and by not
writing a will, their property could pass to unintended heirs. But a will only controls the property after
the death of the joint tenants. If Tim writes a will leaving his half of the property to his parents, his
will is effective only if Sharon is not living. If she is still alive, the property passes to her under the joint
tenancy contract. That’s why many married couples have mutual wills that designate heirs if both spouses die. An attorney can draft a will that provides the appropriate wording to accomplish your wishes.

Property held in joint tenancy with right of survivorship and a written will.

Gary, 67, has remarried and titled his land in joint tenancy with his new wife. His adult children are
concerned. Dad told them not to worry because he has written a will leaving them the land. If Gary dies, who receives the land?

  1. Gary’s children because the will has priority.
  2. Gary’s kids receive half and his wife receives half.
  3. Gary’s kids receive three-quarters and his wife receives one-quarter.
  4. Gary’s new wife.

Most people think that Gary’s children receive the land because the will was written after establishing the joint tenancy with right of survivorship between Gary and his new wife. Wrong. The joint tenancy title on the land is a contract. Gary cannot undo the contract with his written will. His new wife receives his land, not his children as Gary intended. No wonder the children are concerned. Dad has disinherited them without realizing it.

If you’d like to learn more, I’ll be presenting two free sessions at the Missoula Public Library, 301 E. Main St., about estate planning on April 29 at 2:30 and 5:30 p.m. Register to attend at missoulaagingservices.eventbrite.com. Additional estate planning information is available in MSU Extension MontGuides at montana.edu/estateplanning/eppublications.htm.

You may also request copies from your local MSU County Extension Office or from Goetting, P.O. Box
172800, Montana State University, Bozeman, MT 59717.

Marsha A. Goetting is the family economics specialist with Montana State University Extension in Bozeman.