End-of-Life Planning -- Overview
Montanans making long-term life plans have numerous laws and legal documents to consider, as well as statewide resources that may be able to help. Legal topics dealing with end-of-life matters include:
- Power of Attorney
- Estate Planning
- Living Trusts
- Advance Directives (Living Wills)
- Guardianship and Conservatorship
Power of Attorney refers to a written, notarized document in which one person gives another the power to conduct certain acts on his or her behalf.
Estate Planning is the legal planning process, undertaken before a person dies, to determine the distribution of money and property upon death. Estate planning can be complicated, particularly for estates with significant assets. Common tools used in estate planning include wills, trusts, powers of attorney, and living wills.
A Living Trust is a revocable legal arrangement, created during an individual's life that can be changed and terminated at any time. Under a living trust, an individual transfers ownership of assets to a trustee who manages the assets for the beneficiaries designated in the trust agreement.
Advance Directives (Living Wills), created under the "Montana Rights of the Terminally Ill Act" (also known as the Montana Living Will Act) allow individuals the maximum possible control over their own medical care and inevitable death. It allows an individual to declare their intent not to have life sustaining treatment which only prolongs the process of dying.
Guardianship is a legal relationship, pursuant to testamentary or court appointment, of a qualified individual and a minor or incapacitated person. The purpose of guardianship is to promote and protect the well-being of the person and may be ordered only to the extent that the person’s actual mental and physical limitations require it.
Under a Conservatorship, the court appoints someone to manage the estate of a protected person.
Probate -- Overview
Probate refers to the process of settling the estate of a deceased person, including gathering and managing property, paying debts and taxes, and distributing the remaining assets to appropriate parties. In situations where the person who died left a will, property is distributed as designated. For situations of no will or a defective will, property is distributed to heirs according to the law.
The powers and duties involved in the probate process are generally held by a personal representative (also referred to as an administrator or executor).
Montana law provides for both informal and formal probate proceedings. Factors for determining the appropriate probate process for an estate include the value of the estate and whether the decedent left a valid will.
For a more detailed overview of legal documents and procedures involved with end-of-life planning and probate in Montana, please refer to:
Montana Legal Guide to Long-Term Care Planning, 2015-2017, (118 pages) from the Montana DPHHS, Legal Services Developer;
A Glossary of Estate Planning Terms, from MSU Extension; and
Probate in Montana, from MSU Extension.