Sell Inherited Property in Montana

Selling inherited property in Montana depends on how title was held, whether probate is required, what the estate owes, and whether Montana-specific issues like the elective share, the statutory allowances, transfer-on-death deeds, or out-of-state administration affect the sale.

• Montana has no estate tax and no inheritance tax. Selling inherited property creates no state-level death tax. A later sale can still create federal and Montana income-tax consequences, and only on gain above the stepped-up basis.
• The small-estate affidavit moves personal property only, never real estate. Its limit is $100,000, raised from $50,000 in 2023, and it reaches bank accounts and tangible items, not a house.
• Montana is a common-law, separate-property state, not a community property state. A surviving spouse’s protection comes from the elective share and statutory allowances, not from an automatic one-half ownership of everything.
• The surviving spouse’s intestate share is not always the whole estate. When there are children from outside the marriage or a surviving parent, the spouse takes a set dollar amount plus a fraction of the balance.
• Out-of-state estates usually need Montana authority before a house can be sold. A personal representative appointed in another state generally has to register that authority in Montana, or open a Montana proceeding, before clearing title here.

Whether inherited property in Montana requires probate depends on how title was held. Montana real property passes to the heirs or devisees at the moment of death, but a will by itself does not move title; the will generally has to be admitted through probate first, and solely owned property usually needs probate or a probate alternative for insurable title (Mont. Code Ann. 72-3-101; 72-3-102). Montana is not a community property state, so there is no separate community-or-separate question the way there is in Texas.

• Sole ownership: Probate (or alternative) usually required. Passes by will or intestacy; in some cases heirs may establish title without a full administration.
• Joint tenancy with right of survivorship: No probate. Passes automatically to the surviving joint owner, who records an affidavit of surviving joint tenant.
• Tenancy in common: Probate (or alternative) for the deceased owner’s share. The surviving co-owners keep their own shares.
• Transfer on death (TOD) deed, recorded before death: No probate. Passes automatically to the named beneficiary.
• Trust (deed actually titled to the trust): No probate. Distributed by the trustee under the trust terms.
• Life estate: No probate. The remainder passes to the named remainderman.

Montana is a common-law, separate-property state with no estate tax and no inheritance tax. Its defining feature for inherited real estate is a set of protections built on the Uniform Probate Code: a length-of-marriage elective share for a surviving spouse, three different legal devices all called “homestead,” and an out-of-state-heir process that a foreign appointment alone does not satisfy. Montana real property vests in the heirs at the moment of death (Mont. Code Ann. 72-3-101), subject to estate debts, administration, statutory allowances, and title-company underwriting. The controlling framework is the comprehensive 2019 revision of the Montana Uniform Probate Code.

Montana has three mechanics that distinguish it from most other states for inherited real estate: a surviving-spouse elective share that grows with the length of the marriage, three separate “homestead” concepts that are easy to confuse, and an out-of-state-heir registration step that has to happen in Montana before a foreign executor can convey Montana real estate.

How Does the Length-of-Marriage Elective Share Affect Inherited Montana Property?

A surviving spouse who is left out of a will can elect a statutory share equal to 50% of the marital-property portion of the augmented estate, and the marital-property percentage rises with the length of the marriage (Mont. Code Ann. 72-2-232; 72-2-233). A short marriage produces a much smaller share than a long one, and at 15 or more years of marriage the marital-property portion is the full augmented estate. The full mechanics are in the surviving-spouse section below. This matters for a sale because an elective-share claim can affect who has an interest in the property and what the estate can distribute.

What Are the Three “Homesteads” in Montana?

Montana uses the word “homestead” for three unrelated legal devices, and they are commonly confused. The probate homestead allowance is a $22,500 priority claim that protects a surviving spouse or qualifying children during estate administration (Mont. Code Ann. 72-2-412). The recorded homestead declaration is a separate creditor-protection tool filed with the county clerk and recorder to shield a portion of home equity from certain creditors (Mont. Code Ann. Title 70, ch. 32). The Homestead Reduced Rate is a Montana Department of Revenue property-tax program for qualifying owner-occupants, covered in the tax section. They protect different things and an inherited home can involve all three or none of them.

Can an Out-of-State Executor Convey Montana Property Without a Montana Proceeding?

Usually not without a step in Montana. When an out-of-state decedent owned Montana real estate, the property cannot be conveyed on the foreign personal representative’s home-state appointment alone; the foreign representative generally has to file authenticated copies of the appointment with the Montana district court, or open a Montana administration, unless a recorded TOD deed or joint tenancy already moved the property (Mont. Code Ann. 72-4-309; 72-4-310). The out-of-state section below covers both routes.

Montana recognizes several forms of ownership that determine whether inherited property passes through probate, and the principal non-probate pathway for a residence is the transfer-on-death deed, which Montana adopted in 2019 to replace the former beneficiary deed. A transfer-on-death deed has to be signed, notarized, and recorded with the county clerk and recorder before the owner dies, is revocable during life, cannot be revoked by a will, and passes the property subject to existing mortgages and liens. A beneficiary deed that was validly executed and recorded before October 1, 2019 is still treated as a transfer-on-death deed under current law (Mont. Code Ann. 72-6-417), so an older recorded beneficiary deed did not stop working.

One Montana wrinkle for a transfer-on-death deed: a 2025 change clarified that transferring real property by a TOD deed at death does not by itself void the property’s existing insurance, and coverage can continue under the policy’s own terms (Mont. Code Ann. 72-6-412). A beneficiary should still contact the insurer right away rather than assume an inherited or vacant home stays covered on its own.

When someone dies without a will in Montana, the surviving spouse’s share depends on who else survives, and it is not always the entire estate (Mont. Code Ann. 72-2-112). If there are no descendants and no parents, or all descendants are also the spouse’s and the spouse has no other children, the spouse takes everything. When children from outside the marriage or a surviving parent are in the picture, the spouse takes a set dollar amount plus a fraction of the balance.

Anything that does not pass to the spouse, or the whole estate if there is no spouse, passes in order to descendants, then parents, then more distant relatives; if no relative qualifies, the estate passes to the State of Montana (Mont. Code Ann. 72-2-115). Several Montana-specific rules sit on top of these formulas. An heir must survive the deceased by at least 120 hours to inherit (Mont. Code Ann. 72-2-114). Montana divides shares among descendants using per capita at each generation, which is not the same as classic per stirpes (Mont. Code Ann. 72-2-116). Half-blood relatives inherit the same as whole-blood relatives, and children born after the death are included (Mont. Code Ann. 72-2-117; 72-2-118).

Example: A Montana resident dies without a will, survived by a spouse and one child from a previous relationship, with a net intestate estate of $600,000. Because the child is not the surviving spouse’s, the spouse takes the first $150,000 plus one-half of the remaining $450,000, which is $375,000, and the child inherits $225,000. With no children from outside the marriage and no surviving parent, the spouse would take the entire $600,000.

For how intestate succession and the probate process work as concepts, see our guide to probate real estate.

Montana probate timelines vary widely by estate, county, and whether anything is contested, so be cautious about sources promising a fixed number of months. Most uncontested estates run through informal probate, a streamlined, largely administrative process handled by the clerk of the district court, while contested or complex estates use formal or supervised proceedings that take longer. The hard outer limit that catches families is the three-year rule: informal probate or appointment of a personal representative generally must happen within three years of death, after which late probate is allowed only in limited situations (Mont. Code Ann. 72-3-122).

Where the case is filed matters. For someone who lived in Montana, the first proceeding is generally filed in the county where the person lived at the time of death, not necessarily the county where the property sits; the property-county rule applies only when the deceased lived outside Montana but owned property here (Mont. Code Ann. 72-3-112). Montana offers more than one track:

1. Informal probate and appointment. Clerk-handled and largely administrative, used for most uncontested estates (Mont. Code Ann. 72-3-201 through 72-3-216).
2. Formal testacy and appointment. Court-supervised, used for will disputes, contested matters, or cases needing a judge’s adjudication (Mont. Code Ann. 72-3-301 through 72-3-319).
3. Supervised administration. The most court-involved form, where the personal representative acts under continuing court supervision.

Only a properly appointed personal representative has authority to act for the estate. In an informal case the clerk handles the appointment process, but the personal representative, not the clerk, signs and acts for the estate, and generally has broad authority to manage and sell estate real property unless the will, a court order, or supervised administration limits it (Mont. Code Ann. 72-3-613). That authority is what a title company and a buyer’s lender look for before a sale of estate property can close. For a step-by-step look at that role, see our guide to what a personal representative needs to do to sell inherited property.

The fastest ways to transfer inherited Montana property are a pre-death TOD deed, joint tenancy, or trust; after death, the main options are the small-estate affidavit, summary distribution after a personal representative is appointed, informal probate, or formal administration. The right path depends on whether there is a will, the estate’s value, and whether real estate is involved.

The point that drives most Montana mistakes is the small-estate affidavit. Starting 30 days after death, a successor can collect personal property such as bank accounts, securities, and tangible items by affidavit when the probate estate, less liens and encumbrances, does not exceed $100,000 (Mont. Code Ann. 72-3-1101). The $100,000 limit was raised from $50,000 in 2023, so older articles citing $50,000 are out of date, and a vehicle uses a separate Form MV-12 transfer. The affidavit cannot transfer a house. Summary distribution is different: it lets an appointed personal representative immediately distribute a qualifying small estate that does not exceed the allowances, administration costs, funeral, and last-illness expenses, without creditor notice (Mont. Code Ann. 72-3-1103; 72-3-1104). It is a value-relative test, not a fixed cap, and it presupposes an appointed personal representative.

Because Montana is not a community property state, a surviving spouse’s protection against being left out of a will comes mainly from the elective share and the statutory allowances. As a general matter, Montana law provides that neither spouse automatically has an interest in the other’s separately titled property (Mont. Code Ann. 40-2-201), which is why these statutory rights, and any signed marital agreement, matter.

The elective share lets a surviving spouse take 50% of the marital-property portion of the augmented estate instead of what the will leaves them (Mont. Code Ann. 72-2-232). The marital-property portion is not always the whole estate; it rises with the length of the marriage and reaches the full augmented estate at 15 or more years (Mont. Code Ann. 72-2-233). If the spouse’s own property plus the payable share is less than $75,000, the spouse can be brought up to $75,000, and if the spouse elects, the homestead allowance, exempt property, and family allowance are added on top of the elective share, not subtracted from it. The election generally must be filed within 9 months after death, or 6 months after the will is admitted to probate, whichever is later (Mont. Code Ann. 72-2-241).

Example: Take an augmented estate of $1,000,000. After a 5-year marriage, the marital-property portion is 30% of the augmented estate under the statutory schedule, so the spouse’s elective share is 50% of that 30%, about $150,000. After a 15-year-or-longer marriage, the full $1,000,000 is the marital-property portion, and the elective share is 50% of it, about $500,000. The exact figure in any real case depends on a fact-specific accounting of the augmented estate.

Three statutory allowances can also affect what the estate distributes: a probate homestead allowance of $22,500 that has priority over all claims (Mont. Code Ann. 72-2-412), exempt property of up to $15,000 (Mont. Code Ann. 72-2-413), and a family allowance the personal representative may set up to $27,000 as a lump sum or $2,250 per month for one year, which is the representative’s maximum authority rather than an automatic payment (Mont. Code Ann. 72-2-414; 72-2-415).

The elective share, the augmented estate, and blended-family intestacy are areas where small facts change the outcome. If the estate involves a contested will, a blended family, a short or late marriage, a prenuptial or postnuptial agreement, or significant non-probate transfers, a surviving spouse should speak with a Montana probate attorney before relying on a particular number. For the distinct situation of a widow or widower who already co-owned the home, see our guide to selling a house after the death of a spouse.

Does Montana Have an Estate or Inheritance Tax?

No. Montana has no estate tax and no inheritance tax. The inheritance tax was repealed for deaths after January 1, 2001, and Montana has had no estate tax for deaths after 2004, and there is no Montana gift tax. For the rare case of a death before those dates with a federal estate-tax return on file, a Montana clearance form (INH-4) may still come up. Heirs selling inherited Montana property face no state-level death tax. For how inherited property is taxed at the federal and state levels overall, see our complete guide to inherited property taxes.

What Is the Capital Gains Tax on Inherited Property in Montana?

Montana does tax capital gains, but only on the gain above the property’s stepped-up basis, and long-term gains get a preferential rate. Inherited property generally takes a basis step-up to its date-of-death value, which often erases most or all of the gain on a sale made soon after inheriting. For 2026, Montana taxes net long-term capital gains at preferential rates of 3.0% and 4.1%, set apart from Montana’s ordinary-income rates, with the rate depending on filing status and income (Mont. Code Ann. 15-30-2103). This page covers only the Montana-level treatment; for how the federal stepped-up basis works and how to calculate gain, see our guide to capital gains tax on inherited property.

What Happens to Montana Property Taxes After You Inherit a Home?

It depends on whether the home was already enrolled in Montana’s Homestead Reduced Rate and on how the heir will use it. The Homestead Reduced Rate is a Montana Department of Revenue program that lowers the property-tax rate on a qualifying principal residence, and eligibility generally requires occupying the home for at least seven months of the year, being current on property taxes, and qualifying ownership by an individual, a couple, or a grantor revocable trust. If the home was already enrolled before the heir took ownership, the reduced rate generally remains in place through the end of that calendar year, and a qualifying heir must enroll as the new owner to keep it in future years. If the home was not previously enrolled, it is generally taxed at the standard residential rate for that year until a qualifying owner enrolls. A second home or family cabin usually does not qualify unless it is a current owner’s principal residence. You can check enrollment status and current requirements at the Montana Department of Revenue’s portal, homestead.mt.gov.

To sell inherited Montana property, the title company needs proof of who has legal authority to sign the deed, and that proof depends on how the property is passing. Montana real property vests in the heirs at death subject to administration, so heirs can sometimes convey before an administration fully closes, but the title company decides what it will insure (Mont. Code Ann. 72-3-911). The signer is the personal representative for estate property, the surviving owner for survivorship property, the trustee for trust property, and the named beneficiary for a recorded TOD deed; where there is no administration, the necessary heirs or devisees may establish title and sign, subject to creditor claims, allowances, and title-company underwriting. For the trustee’s specific duties when a trust holds the home, see our guide to selling a house in a trust after death.

Montana also requires a Realty Transfer Certificate for transfers of real estate: a deed cannot be accepted for recording until the county clerk and recorder has received the certificate (Mont. Code Ann. 15-7-305), and for rural and agricultural property the certificate process can include a water-right ownership update form. A sale can often close before the estate fully closes, but only when the signer has authority and the title company will insure; without both, a buyer’s lender will not fund. For the full list of paperwork, see our guide to the documents you need to sell inherited property.

Out-of-state heirs selling Montana property usually need to solve the Montana title issue in Montana, even when the main probate is happening in the decedent’s home state, because a foreign personal representative’s home-state appointment does not by itself convey Montana real estate. When no Montana administration is pending, a foreign personal representative may file authenticated copies of the appointment, and of any bond, with the Montana district court in the county where the property sits, and then exercise the powers of a local personal representative as to the Montana property (Mont. Code Ann. 72-4-309; 72-4-310). A full local administration is needed only in some situations, such as a dispute, a competing local appointment, a creditor issue, or a title-insurer requirement (Mont. Code Ann. 72-4-401). If the property already passed by a recorded TOD deed or joint tenancy, it never enters Montana probate, so neither route is needed.

For the general mechanics of probating an estate across state lines, see our guide to ancillary probate.

Montana adopted the Uniform Partition of Heirs’ Property Act (Mont. Code Ann. 70-29-401 through 70-29-420) to limit forced sales of family-inherited land. When property qualifies as heirs’ property and any cotenant files to partition, the court follows a protective sequence rather than sending the land straight to a courthouse auction. The court first orders a determination of value, generally by independent appraisal (Mont. Code Ann. 70-29-410). Eligible cotenants then generally have 45 days after the value notice to buy out the cotenant who requested the sale (Mont. Code Ann. 70-29-411). If no buyout resolves it, the court prefers dividing the land physically unless that would substantially harm the cotenants (Mont. Code Ann. 70-29-413), and only if a sale is ordered, the default is an open-market sale rather than a courthouse auction (Mont. Code Ann. 70-29-414).

These protections apply only to qualifying heirs’ property, not to every co-owner disagreement. To sell the whole property, all co-owners generally have to sign, because each signs for their own interest; a single co-owner can usually sell only their own fractional share, which rarely works on the open market, so families that cannot agree typically use a buyout or a partition action. For how a forced sale works as a concept, see our guide to whether a sibling can force the sale of inherited property.

This page reflects current 2026 Montana rules. Key recent changes that affect heirs selling inherited property include the following:

• Montana legislates in odd years only. The 2025 session adjourned in April 2025, and 2026 is not a session year, so no new session legislation took effect in 2026.
• The small-estate affidavit limit rose to $100,000 (from $50,000) effective in 2023, and covers personal property only (Mont. Code Ann. 72-3-1101).
• Long-term capital-gains rates of 3.0% and 4.1% apply for 2026, set apart from Montana’s ordinary-income rates, which matters to heirs selling appreciated inherited property (Mont. Code Ann. 15-30-2103).
• The Homestead Reduced Rate property-tax program is active for 2026, with an already-enrolled home keeping the reduced rate through year-end after an ownership change and a qualifying heir needing to enroll as the new owner to continue it.
• A 2025 change confirmed that a transfer-on-death transfer does not by itself void the property’s existing insurance, though coverage continues only under the policy’s own terms (Mont. Code Ann. 72-6-412).
• The Uniform Partition of Heirs’ Property Act remains in effect for qualifying family-inherited land (Mont. Code Ann. 70-29-401 through 70-29-420).