Beneficiary Deeds in
Montana
by Marsha Goetting, Ph.D., CFP®, CFCS, Professor and Extension Family
Economics Specialist, Montana State University-Bozeman; Kristen Juras,
Professor, School of Law, University of Montana-Missoula
MontGuide
Beneficiary deeds allow owners of real property in Montana to transfer at death
without probate their property to one or more beneficiaries.
MT200707HR Revised 8/16
THE 2007 MONTANA LEGISLATURE AUTHORIZED
beneficiary deeds as a way for people to transfer at death
their real property (located in Montana) to one or more
beneficiaries without probate. Real property is land,
including whatever is erected, growing on or affixed to it,
such as homes, garages, or other buildings, fences, water
systems (unless removable), mineral deposits and standing
uncut timber.
This MontGuide answers questions about the new law
(Montana Code Annotated Section §72-6-121) that applies
to owners who have signed and recorded a beneficiary
deed with the clerk and recorder in the Montana county
where the real property is located and who pass away after
October 1, 2007. Statutory language for a beneficiary
deed and a beneficiary deed revocation are also provided
in this MontGuide.
What is a beneficiary deed?
A beneficiary deed is one in which an owner conveys an
interest in Montana real property to a grantee beneficiary
effective upon the owner’s death. In other words, real
property is transferred from the deceased person to the
person(s) listed on the deed. The deed must specifically
state that it is effective only upon the death of the owner.
The deed must also have a complete legal description of
the Montana property that the owner wishes to convey at
death. An owner should use the legal description for the
real property from a previously recorded deed – not the
description appearing on the property tax bill that is sent
annually to the owner by the county treasurer.
A beneficiary deed must be recorded before the death
of the owner (or, for joint tenancy property, before the
death of the last surviving owner) with the clerk and
recorder in the Montana county where the property is
located. All beneficiary deeds must have the post office
address of the grantee listed on it before the clerk and
For More Online MontGuides, Visit www.msuextension.org
recorder's office can record it. The owner must also
prepare a Montana realty transfer certificate before the
clerk and recorder will record a beneficiary deed. A
Montana Realty Transfer Certificate is available at any
Montana county clerk and recorder’s office or online at
www.revenue.mt.gov, search "Realty Transfer Certificate".
The recording fee for a beneficiary deed is $7 per
page. If a document does not meet the requirements it is
referred to as “non-standard” and the cost is $7 per page
plus $10. Details about the standard format are provided
in the Montana Code Annotated, http://leg.mt.gov/
bills/mca/7/4/7-4-2636.htm. For example, the name and
mailing address of the person to whom the document is to
be returned is to be included in the margin in the upper
left-hand corner of the first page of each document. The
document is non-standard if no return address is included
in the upper left hand corner. There are many more
requirements regarding the margins, color of ink, and
size of paper. An example of a standard beneficiary deed
form is provided at www.montana.edu/estateplanning/
beneficiarydeedform.pdf.
Who can be a grantee beneficiary?
The term grantee beneficiary means the party to whom an
owner grants an interest in the Montana real property that
is described on the beneficiary deed. Grantee beneficiaries
may be a variety of parties, for example: spouse, children,
relatives, friends, charitable organizations, trustee of a
trust, or a corporation.
An owner is not required to have the signature, consent,
or agreement of the grantee beneficiary. Nor is the owner
required to give the grantee beneficiary notice that a
beneficiary deed has been recorded. The grantee beneficiary
also has no ownership rights in the Montana real property
described on the beneficiary deed until the owner dies.
Can there be more than one grantee
beneficiary?
An owner may designate more than one grantee beneficiary
for his or her Montana real property. However, the owner
should specify in the beneficiary deed whether the grantee
beneficiaries will own the property (after the death of the
owner) as tenants in common or as joint tenants with right
of survivorship. For further information regarding these
two forms of property ownership, read MSU Extension
MontGuide, Property Ownership (MT198907HR).
Request a copy from your local Extension office.
Because the language for a beneficiary deed that is
provided by the Montana statute does not specify the
type of ownership when there is more than one grantee
beneficiary, an owner should consult an attorney for
advice about which form of ownership would be best to
accomplish his or her estate planning goals.
What happens if a grantee beneficiary dies
before the owner of the real property?
If an owner designates only one grantee beneficiary and
is concerned about what happens to the property if the
grantee beneficiary dies before the owner, he or she may
designate one of the several alternatives listed below for the
distribution of the property listed on the beneficiary deed.
1. The owner may specify that the beneficiary deed
becomes void upon the death of the grantee beneficiary.
2. The owner may specify that the Montana real property
becomes part of the estate of the deceased grantee
beneficiary. Under this condition, when the owner(s)
die, the real property is distributed according to the will
of the deceased grantee beneficiary or, if the deceased
grantee beneficiary had no will, to the heirs of the
deceased grantee beneficiary under Montana intestate
statutes. This alternative may present complications
if several years lapse between the death of the grantee
beneficiary and death of the owner(s). An attorney can
provide information about potential consequences of
using this alternative for your specific circumstances.
3. The owner may specify a successor grantee beneficiary, as
discussed in more detail in the next section.
Who can be a successor grantee
beneficiary?
An owner of Montana real property can also designate a
successor grantee beneficiary in case the grantee beneficiary
dies before the owner. If an owner designates a successor
grantee beneficiary, the beneficiary deed should state the
condition under which the successor inherits.
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Example: Mark owns real property in Montana. Mark
recorded a beneficiary deed to be effective upon his
death, naming his son, Evan, as his grantee beneficiary.
Mark also designated his grandson, Luke, as the successor
grantee beneficiary in case Evan dies before Mark. Mark’s
attorney recommended the following language in the
beneficiary deed: “If Evan dies before me, I name Luke
as the successor grantee beneficiary effective upon my
death, should he survive Evan and me. If Luke does not
survive Evan and me, this deed shall be void.”
If an owner names more than one grantee beneficiary
and specifies that they are to become owners as joint
tenants with right of survivorship, the surviving joint
grantee beneficiaries inherit the real property if one of
the joint grantee beneficiaries dies before the owner. An
owner should specify what he or she wants to happen to
the property if all of the joint tenant grantee beneficiaries
die before the owner.
Example: Patricia recorded a beneficiary deed for her
Montana land to be effective upon her death, naming
her sisters, Fay and Ellen, as grantee beneficiaries
with the title to be held as joint tenants with right
of survivorship. If Fay dies before Patricia, Ellen
will become the sole grantee beneficiary. Patricia’s
beneficiary deed should specify what happens if neither
Fay nor Ellen survive Patricia. Therefore, Patricia’s
attorney recommended the following language in the
beneficiary deed: “If both Fay and Ellen predecease
me, the Montana 4-H Foundation will become the
successor grantee beneficiary effective upon my death.”
If an owner names more than one grantee beneficiary
and does not specify that they own the property as
joint tenants with right of survivorship, the grantee
beneficiaries inherit as tenants in common. The
beneficiary deed should specify what happens to the
interest of a deceased tenant in common grantee
beneficiary if he or she fails to survive the owner.
Example: Edna owns real property in Montana and has
recorded a beneficiary deed to be effective upon Edna’s
death. She named her two sisters, Wendy and Patsy,
grantee beneficiaries with the title to be held as tenants
in common. Edna’s beneficiary deed should specify
what happens to either Wendy or Patsy’s interests if
they do not survive Edna. Therefore Edna’s attorney
recommended the following language in the beneficiary
deed: “In the event that either Wendy or Patsy does not
survive me, her one-half interest in the real property
shall be distributed to the Montana State University
Foundation effective upon my death.”
If Edna had named Wendy and Patsy grantee
beneficiaries as joint tenants with right of survivorship,
upon the death of either Wendy or Patsy, the survivor
would inherit the entire property. However, Edna could
name a successor grantee beneficiary if both Wendy and
Patsy predecease her. To accomplish this goal Edna’s
attorney suggested the following statement: “I convey
the property described below to the grantee beneficiaries,
Wendy and Patsy, as joint tenants with right of
survivorship, effective upon my death. If both Wendy and
Patsy fail to survive me, the property shall be distributed
to the University of Montana Foundation effective upon
my death.”
The advice of an attorney should be sought when
drafting a beneficiary deed that lists more than one
grantee beneficiary to assure that the owner has
considered the forms of property ownership and decided
what he or she wants to happen to the property if one of
the beneficiaries dies before the owner.
What happens if more than one person
owns the real property?
Whether a grantee beneficiary receives the property as the
result of a beneficiary deed depends upon how the owners
hold title to the real property. Do the owners have the
property titled as joint tenants with right of survivorship
or as tenants in common?
When the Montana real property is titled by the
owners as joint tenants with right of survivorship, the right
of the surviving joint tenant takes priority over the right
of the grantee beneficiary.
Example: Doug and his wife, Laura, own real property
in Montana as joint tenants with right of survivorship.
Doug signed and recorded a beneficiary deed naming
their two daughters as grantee beneficiaries to be
effective upon his death. If Doug dies before Laura,
their daughters will not inherit the property upon
his death because the existing joint tenancy contract
with his wife, Laura, takes priority. However, if Laura
dies before Doug, and Doug dies six days later, the
beneficiary deed signed by Doug naming their two
daughters as grantee beneficiaries will be effective, and
their two daughters will inherit the property upon
Doug’s death.
Ownership of Montana real property that is held as
joint tenancy with right of survivorship is not affected by
the recording of a beneficiary deed unless the deed is
signed by all of the owners or signed by one owner, who is
the last one to die.
Example: Donna, Debbie and Kristi own real property
in Montana as joint tenants with right of survivorship.
Donna signed and recorded a beneficiary deed without
obtaining the signatures of the other two joint owners,
Debbie and Kristi. If Donna dies before Debbie and
Kristi, the grantee beneficiary that Donna designated
would not receive the Montana real property because
all joint owners did not sign the beneficiary deed.
However, if Donna was the last survivor, the grantee
beneficiary she named would inherit the Montana real
property upon Donna’s death.
If all of the owners of real property titled as joint
tenants with right of survivorship sign a beneficiary
deed designating a grantee beneficiary, the transfer to
the grantee beneficiary does not become effective until
the death of the last surviving owner. However, the deed
should specifically state that the transfer to the grantee
beneficiary becomes effective upon the death of the last
surviving owner.
Example: Phyllis and Bob own real property in
Montana as joint tenants with right of survivorship.
They both signed and recorded a beneficiary deed
naming their son as the grantee beneficiary to be
effective on the death of the last surviving owner. This
means their son will not receive the Montana real
property until after both Phyllis and Bob die.
If the last surviving joint owner of real property held as
joint tenancy with right of survivorship had not signed the
beneficiary deed, the deed becomes void.
Example: Lynn and Eric own real property in Montana
as joint tenants with right of survivorship. Lynn signed
and recorded a beneficiary deed naming her daughter
from a prior marriage as the grantee beneficiary. Because
Eric did not sign the beneficiary deed, it becomes void
if Lynn dies before Eric. Lynn’s daughter, the grantee
beneficiary, would not receive the property upon Lynn’s
death. If Lynn and Eric want to assure that Lynn’s
daughter receives their Montana real property as a
result of the beneficiary deed, Eric should also sign the
beneficiary deed before it is recorded with the clerk and
recorder in the county where the land is located.
If the owners have their real property titled as tenants
in common rather than as joint tenants with right of
survivorship, each owner may execute a beneficiary deed
to distribute his or her interest in the property upon
death. The beneficiary deed does not affect the interest
that is held by the other tenant in common co-owner(s).
3
Example: Carol and Amy own real property in
Montana as tenants in common. Carol recorded a
beneficiary deed for her one-half interest in the real
property, naming her daughter as the grantee beneficiary
to be effective upon Carol’s death. Amy did not execute
a beneficiary deed for her one-half interest in the real
property. Upon Carol’s death, her one-half interest in
the property as a tenant in common becomes owned by
her daughter, her grantee beneficiary. Amy will continue
to own the other one-half interest in the property. Upon
Amy’s death her one-half interest in the property will be
distributed according to her will or Montana intestate
statutes if she doesn’t have a will.
What wording on a beneficiary deed makes
it legal?
The wording that was included in the Montana statute
for a beneficiary deed is provided in Figure 1. An
online version of this form is at www.montana.edu/
estateplanning/beneficiarydeedform.pdf.
How is a beneficiary deed revoked?
A beneficiary deed may be revoked at any time by the
owner, or if there is more than one owner, by the owners
who have signed the beneficiary deed. To be effective, the
revocation must be signed and recorded before the death
of the owner(s) in the office of the Montana clerk and
recorder of the county in which the real property is located.
FIGURE 1: Statutory Language for a Beneficiary Deed (sample, non-standard form)
I (We) _________________________ (Owner) hereby convey to ___________________________ (Grantee Beneficiary)
effective on my (our) death the following described real property:_______________________________________
(Legal description from previously recorded deed)
_______________________________________
If a grantee beneficiary predeceases the owner, the conveyance to that grantee beneficiary must either (choose one):
[ ] Become void.
E
L
P
M
A
S
[ ] Become part of the estate of the grantee beneficiary.
_______________________________________
(Date)
_______________________________________________________________________________________________
[Signature of Grantor(s)]
State of Montana, County of _____________________
This instrument was acknowledged before me on _____ day of ____________________, 201__
(Date)
(Month)
by _______________________________________________________________.
(Name of Owner)
________________________________________________________
(Signature of Notarial Officer)
________________________________________________________
(Printed or Typed Name of Notary)
Notary Public for the State of Montana
Residing at______________________________________
My commission expires____________________________
(Notary Seal)
4
If the real property is owned as joint tenants with right
of survivorship and the beneficiary deed was signed by
all joint owners, a revocation is not effective unless it is
signed by all of the joint owners, or signed by one owner,
when that owner is last to die.
The filing and recording of a new beneficiary deed by
the same owner for the same property will also revoke
a previously filed and recorded beneficiary deed. The
wording that was included in the Montana statute for the
revocation of a beneficiary deed is provided in Figure 2.
An online version of this form is at www.montana.edu/
estateplanning/revocationofbeneficiarydeedsampleform.pdf.
Example: Michael and Kris owned real property in
Montana as joint tenants with right of survivorship.
Both signed and recorded a beneficiary deed naming
Michael’s sister as the grantee beneficiary to be effective
upon the death of both Michael and Kris. Several
years later Michael signed and recorded a revocation.
Michael died before Kris as a result of an automobile
accident. The revocation was not effective because Kris
had not signed the revocation. However, after Michael’s
death Kris, as the surviving joint owner, could record a
revocation or record a new beneficiary deed naming the
grantee beneficiary she prefers.
What is required to retitle the property into
the name of the grantee beneficiary upon
the owner’s death?
To retitle the real property in the name of the grantee
beneficiary upon the owner’s death, proof must be
provided that the owner has died. A notarized affidavit
certifying the death of the owner signed by the grantee
beneficiary or beneficiaries is an acceptable document.
Sample wording for an affidavit of death is provided
FIGURE 2: Statutory Language for a Revocation of Beneficiary Deed (sample, non-standard form)
The undersigned hereby revokes the beneficiary deed recorded on ________ ____, _______ in docket or book ___________,
(Month)
(Date)
(Year)
at page ______, or instrument number ____________, records of ________________ County, Montana, concerning the
E
L
P
M
A
S
following described real property:______________________________________________________________________
(Legal description from previously recorded deed)
________________________________________________________________________________________________
___________ _______, _______
(Month)
(Date)
(Year)
________________________________________________________________________________________________
[Signature of Grantor(s)]
State of Montana, County of _____________________
This instrument was acknowledged before me on _____ day of ____________________, 201__
(Date)
(Month)
by _______________________________________________________________.
(Name of Owner)
_______________________________________________________________
(Signature of Notarial Officer)
_______________________________________________________________
(Printed or Typed Name of Notary)
Notary Public for the State of Montana
Residing at______________________________________
My commission expires____________________________
(Notary Seal)
5
in Figure 3. An online version of this form is available
at www.montana.edu/estateplanning/documents/
affidavitofdeathdampleform.pdf. A grantee beneficiary
should consult an attorney if he or she has any questions
about verifying the death of the owner(s) of Montana real
property.
The grantee beneficiaries can take title to the real
property with a beneficiary deed without going through
the probate process by recording the affidavit with the
county clerk and recorder where the real property is
located. If there is more than one grantee beneficiary, they
will take title as tenants in common, unless the beneficiary
deed has specified that the grantee beneficiaries are to
become owners as joint tenants with right of survivorship.
FIGURE 3: Affidavit of Death (sample)
I, _________________________________, being first duly sworn, upon oath, depose and say the following:
(Name of Beneficiary)
1.
________________________________ signed and recorded a beneficiary deed with the intent to convey the following
(Name of Grantor)
property located in ________________________, Montana described as follows:
(Name of County)
______________________________________________________________________________________________
2.
The beneficiary deed was recorded in_________________County on _____________ _______, _______
(Month)
(Day)
(Year)
Book__________, Page________, Instrument Number_________.
3.
E
L
P
M
A
S
The grantor died on _____________ _______, _______. At the time of death, the grantor had not revoked the above
(Month)
(Day)
(Year)
described beneficiary deed.
4.
The following person(s) is/are the person(s) named as the grantee beneficiary(ies) under the beneficiary deed described above,
and are entitled to succeed to the grantor’s interest in the real property described above as a result of the grantor’s death:
(Grantee Beneficiary Name):_________________________________________________
Mailing address:__________________________________________________________
Dated this _____ day of __________________, 201__.
(Date)
(Month)
____________________________________________
(Signature of Affiant)
State of Montana County of _____________________________________________________
This instrument was acknowledged before me on _____ day of ____________________, 201__
(Date)
(Month)
by _______________________________________________________________.
(Name of affiant)
_______________________________________________________________
(Signature of Notarial Officer)
_______________________________________________________________
(Printed or Typed Name of Notary)
Notary Public for the State of Montana
Residing at______________________________________
My commission expires____________________________
(Notary Seal)
6
What if the real property listed on the
beneficiary deed has an encumbrance
against it?
Montana real property that is conveyed in a beneficiary
deed to a grantee beneficiary is subject to any
encumbrances arising against the property during the
owner’s lifetime. Encumbrances against real property
include for example: mortgages; deeds of trust; liens
for unpaid taxes or failure to pay for labor, materials,
equipment or services on the property; contracts;
assignments; and any other legal conveyance document
recognized by the state of Montana. This would include a
marriage dissolution settlement or order.
Any Medicaid payments to an owner may also become
an encumbrance against the Montana real property
in certain situations. If the owner was a recipient of
Medicaid and had conveyed an interest in Montana real
property by means of a beneficiary deed, the Montana
Department of Public Health and Human Services
may assert a claim against the real property. The claim
typically would be for the dollar amount of Medicaid
payments that were provided to the owner before his or
her death, up to the value of the Montana real property.
For further information about Medicaid read MSU
Extension MontGuide, Medicaid and Long-Term Care
Costs (MT199511HR). Request a copy from your local
Extension office.
If there are insufficient assets in the owner’s estate to pay
valid creditors’ claims, the creditors may seek payment from
the value of the Montana real property that was conveyed
by a beneficiary deed. The personal representative is in
charge of making sure that all valid creditors’ claims are
paid, if necessary, from the beneficiary deed real property.
What is the effect of a will on a beneficiary
deed?
After a beneficiary deed has been signed and recorded
with the Montana clerk and recorder in the county where
the real property is located, the deed cannot be revoked
by a provision in the owner’s will. A beneficiary deed may
only be revoked by recording a revocation in the manner
described previously or by recording a new beneficiary deed.
Example: Gary signed and recorded a beneficiary deed
naming his daughter as grantee beneficiary of real
property he owned in Montana to be effective upon
his death. Gary later wrote a will leaving the same
Montana real property to his son. Upon Gary’s death,
the provision in the will leaving the real property to his
son is not valid. The real property would pass to Gary’s
daughter under the terms of the beneficiary deed.
What is the effect of a trust on a
beneficiary deed?
If an owner’s real property has not been re-titled in the
name of the owner’s revocable living trust, a beneficiary
deed may be executed naming the trustee of the revocable
trust as the grantee beneficiary. The terms of the trust
document control how the property will be distributed
upon the death of the person who established the trust.
What rights do the surviving spouse and
minor children have in the real property
if they were not named as grantee
beneficiaries on a beneficiary deed?
Montana law provides certain allowances for the surviving
spouse and minor or dependent children of a deceased
property owner. If assets of the estate are insufficient to
provide for the Montana statutory allowances for the
spouse’s elective share (which increases in percentage from
three to 50 percent based on the length of the marriage);
exempt property ($10,000); family allowance ($18,000);
homestead allowance ($20,000); the Montana real
property listed in a beneficiary deed can be claimed for
the statutory amounts. The personal representative for the
estate is in charge of making sure the statutory allowance
claims are paid to the spouse and minor or dependent
children.
For further information about rights of the surviving
spouse and minor or dependent children read MSU
Extension MontGuide, Probate (MT199006HR). Request
a copy from your local Extension office.
The $20,000 homestead allowance is different from
the Montana homestead declaration that protects up to
$250,000 in the value of the home while the owner is
living against most creditors’ claims.
What if there are water rights on the real
property?
If there are water rights associated with the Montana real
property that is being transferred by an owner at his or her
death with a beneficiary deed, the owner does not need to
file Form 608 (DNRC Water Right Ownership Update)
or Form 640 (Certification of Water Right Ownership
Update) that appears on pages five and six of the Realty
Transfer Certificate. The water rights information is
provided on page 3, Part 7, Water Right Disclosure in
the Realty Transfer Certificate Form 488 (RTC) revised
01/13. http://revenue.mt.gov/Portals/9/property/
forms/488RTC.pdf.
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What if more than one beneficiary deed is
recorded?
Beneficiary deeds can be revoked at any time by the
owner, so the latest recorded beneficiary deed is the
controlling document. In other words, if owners change
their minds about who they want to receive the real
property after they die, one recorded beneficiary deed
can be replaced with a later recorded document naming
different beneficiaries. The recording of a new beneficiary
deed revokes any beneficiary deed dated earlier.
Can a beneficiary deed be used to transfer
personal property after death?
No. A beneficiary deed is designed to transfer real
property not personal property. However, certain personal
properties of a Montana resident can also be transferred at
death by other methods without probate by designating
beneficiaries on contracts. For example, a person can list
one or more beneficiaries on a life insurance policy; make
a payable on death (POD) beneficiary designation on
accounts at financial institutions, or sign a transfer on
death (TOD) beneficiary registration for stocks, bonds,
and mutual funds. For further information about PODs
and TODs read MSU Extension MontGuide, NonProbate Transfers (MT199509HR). Request a copy from
your local Extension office.
Summary
D
After October 1, 2007 a person can transfer his or her
Montana real property at death to one or more parties by
signing and recording a beneficiary deed with the clerk
and recorder in the county where the real property is
located. The beneficiary deed must contain a complete
legal description of the Montana real property. All
beneficiary deeds must have the post office address of the
grantee listed on it before the clerk and recorder's office
can record it. The owner also must prepare a Montana
Realty Transfer Certificate. After recording, the beneficiary
deed should be stored in a safe place such as a safe deposit
box or a secure place in the grantor’s home.
References
2013 Montana Codes Annotated Section §72 - 6 - 121;
http://leg.mt.gov/bills/mca/72/6/72-6-121.htm
2007 Montana Estate Planning Legislative Update;
Kristen Juras, University of Montana School of Law,
September 1, 2007.
Disclaimer
This MontGuide is not a substitute for legal advice.
Rather it is designed to inform persons about the
provisions of the Montana beneficiary deed statute. Future
changes this law cannot be predicted and statements in
the MontGuide are based solely on the statutes in force on
the date of publication.
Acknowledgement
Representatives from the following reviewed this
MontGuide and recommend its reading by all Montanans
who are in the process of estate planning:
- Business, Estates, Trusts, Tax and Real Property Section
– State Bar of Montana
- Montana Credit Union Network
- Clerk and Recorders and Supervisory Staff in Gallatin,
Hill, Lewis and Clark, and Park Counties.
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