Montana Transfer on Death Deed Form

What is a Montana transfer-on-death (TOD) deed?

A Montana transfer-on-death (TOD) deed is a legal document that transfers Montana real estate to one or more beneficiaries named in the deed. The property transfer takes effect on the owner’s death and does not require probate. Montana TOD deeds were authorized by the Montana Uniform Real Property Transfer on Death Act in 2019.¹

What is the purpose of a Montana TOD deed?

The primary purpose of a Montana TOD deed is to avoid probate. A Montana transfer-on-death deed is nontestamentary, meaning that it transfers property outside of the normal probate process used to do so after an owner dies.² Instead of going through the probate process, the property passes automatically to the beneficiaries named in the deed.

Like with a living trust—and unlike with a traditional life estate deed—an owner who makes a Montana TOD deed retains complete control over the property during life. The owner can sell, mortgage, or otherwise deal with the property without talking to the beneficiaries named in the deed about it. This retained control, coupled with the probate-avoidance feature, makes Montana TOD deeds a popular choice for Montana property owners who want to avoid probate.

What is the benefit of avoiding probate?

Probate is a legal process for settling a person’s final affairs. It requires someone—usually an attorney—to present a series of court pleadings to a judge over a period of time. These court proceedings reveal the assets owned by the deceased owner and other personal information. Montana TOD deeds avoid the expense, time, and privacy loss involved in the Montana probate process.

What types of property can be transferred using a Montana TOD deed?

A Montana TOD deed may be used only to transfer real estate (real property) located in Montana.³ It cannot be used to transfer other assets—like cars—or real estate located in other states.

What is the effect of a Montana TOD deed while the owner is alive?

A Montana TOD deed is designed to take effect on the owner’s death (or, if there are multiple owners, on the death of the last owner to die).⁴ It has little effect while the owner is alive. The owner can revoke (cancel) the TOD deed⁵ or sell the property⁶ at any time.

Can the owner sell the property after recording a TOD deed?

Yes. An owner that makes a Montana TOD deed to transfer property at death may transfer the same property later during life, and any transfer before the owner’s death revokes the prior TOD deed.⁷

The interest left to a beneficiary in a TOD deed is “subject to” any transfer the owner makes before death.⁸ The beneficiary receives nothing if the owner sells the property.

Is a Montana TOD deed revocable?

Yes. A Montana TOD deed can always be revoked, even if the deed includes language that says otherwise.⁹ Three types of documents can revoke a Montana TOD deed:

1. A transfer-on-death deed that revokes the deed or part of the deed by its wording or by not matching the earlier deed;
2. An instrument of revocation that clearly revokes the deed or part of the deed; and
3. A transfer of the property during life using a deed that clearly revokes the transfer-on-death deed or some part of it.¹⁰

To be effective, the owner must sign and notarize the relevant document after the date the original TOD deed was signed and notarized. The revocation must also be recorded before the owner’s death in the public records in the Office of the County Clerk and Recorder of the county where the TOD deed (the deed being revoked) is recorded.¹¹

If joint owners sign a Montana TOD deed, one owner’s revocation does not affect the deed as to another owner’s interest.¹² A TOD deed by joint owners is revoked only if all of the living joint owners revoke it.¹³

US common law has historically allowed wills to be revoked by physical acts, such as tearing, burning, or otherwise destroying the will. A TOD deed is not a will, so a revocatory act cannot revoke it after it is recorded.¹⁴

What is the effect of a Montana TOD deed when the owner dies?

On the death of the owner—or, if there are multiple owners, on the death of the last owner—the property is transferred to the beneficiary as described in the deed.¹⁵ The beneficiary takes the property as is, with no warranty of title (even if the deed says otherwise)¹⁶, and the property remains subject to all mortgages or other actions the owner may have taken prior to death.¹⁷

Can a Montana TOD deed leave property to multiple beneficiaries?

Yes. The Montana Uniform Real Property Transfer on Death Act allows a TOD deed to “transfer property to one or more beneficiaries.”¹⁸ If all beneficiaries survive the owner unless the deed says otherwise, multiple beneficiaries will each have equal and undivided shares with no right of survivorship.¹⁹ If a beneficiary dies before the owner, and unless the deed says otherwise, the interest of the deceased beneficiary passes to the surviving beneficiaries.²⁰

Can joint owners sign a Montana TOD deed?

Yes. A joint owner is defined as any individual who owns property with one or more other individuals with a right of survivorship. The definition does not include tenants in common. Joint owners may sign the same TOD deed.²¹

The TOD deed does not affect the survivorship rights of the joint owners. On the death of an owner, if one or more other joint owners outlive the deceased owner, the property passes to the surviving owners under the right of survivorship.²². If the deceased owner is the last surviving joint owner, the transfer-on-death deed transfers the property to the beneficiaries named in the TOD deed.²³ These rules help facilitate the common estate plan of leaving the property to the surviving spouse on the death of the first spouse, then to the children when the second spouse dies.

What happens if the beneficiary named in a Montana TOD deed dies before the owner?

The interest of a beneficiary depends on whether that beneficiary survives the owner. If he or she does not, the transfer lapses (fails).²⁴

The effect of a lapse depends on the terms of the deed. If the deed does not offer another plan, and if the owner has named two or more beneficiaries to receive property rights together, the share of one beneficiary that lapses or fails for any reason is transferred to the surviving beneficiaries.²⁵

Must the owner notify the beneficiaries of the Montana TOD deed?

No. The Montana Uniform Real Property Transfer on Death Act is clear that a TOD deed is effective without notice or delivery to or acceptance by the beneficiary during the owner’s life.²⁶

Can a Montana TOD deed be used when the property is mortgaged?

Yes. The Montana Uniform Real Property Transfer on Death Act does not limit an owner’s ability to mortgage property. The property rights left to a beneficiary in a TOD deed are “subject to” any mortgages that exist at the owner’s death.²⁷ The beneficiary receives nothing if the owner sells the property.

Must a Montana TOD deed be recorded?

Yes. To be valid, a Montana TOD deed must be recorded before the owner’s death in the public records in the Office of the County Clerk and Recorder of the county where the property is located.²⁸ Failure to record the deed makes it invalid.

Can an agent sign a Montana TOD deed under a power of attorney?

The mental ability required to make or revoke a transfer-on-death deed is the same as that required to make a will.²⁹ If the owner lacks the mental ability described in the law, then it is not clear that an agent under a power of attorney can create a TOD deed on the owner’s behalf. Exceptions may apply if the owner made the power of attorney while having full mental ability and a power of attorney clearly gives the agent the right to create a TOD deed.

What are the requirements for a Montana TOD deed?

Under the Montana Uniform Real Property Transfer on Death Act, a TOD deed:

1. Must contain the essential elements and formalities required for other types of Montana deeds, including identification of the parties and a valid legal description;
2. Must state that the transfer to the beneficiary will happen at the owner’s death (or, if there are multiple owners, on the death of the last owner to die); and
3. Must be recorded before the owner’s death in the public records in the Office of the County Clerk and Recorder of the county where the property is located.³⁰

Because the Montana Uniform Real Property Transfer on Death Act deals with Montana’s specific legal requirements, it is important that each Montana TOD deed is prepared with Montana law in mind. Using a generic or fill-in-the-blank TOD deed form can make the deed invalid, prevent the transfer, and sometimes lead to title insurance issues.

1. Mont. Code § 72-6-401.
2. Mont. Code § 72-6-406.
3. Mont. Code § 72-6-402(5).
4. See Mont. Code § 72-6-412.
5. Mont. Code § 72-6-405.
6. Mont. Code § 72-6-410(4).
7. Mont. Code § 72-6-410(4).
8. Mont. Code § 72-6-412(2).
9. Mont. Code § 72-6-405.
10. Mont. Code § 72-6-410(1)(a).
11. Mont. Code § 72-6-410(1)(b).
12. Mont. Code § 72-6-410(2)(a).
13. Mont. Code § 72-6-410(2)(b).
14. Mont. Code § 72-6-410(3).
15. Mont. Code § 72-6-412(1)(a).
16. Mont. Code § 72-6-412(4).
17. Mont. Code § 72-6-412(2).
18. Mont. Code § 72-6-404.
19. Mont. Code § 72-6-412(1)(c).
20. Mont. Code § 72-6-412(1)(d).
21. Mont. Code § 72-6-402(3).
22. Mont. Code § 72-6-412(3)(a).
23. Mont. Code § 72-6-412(3)(b).
24. Mont. Code § 72-6-412(1)(b).
25. Mont. Code § 72-6-412(1)(d).
26. Mont. Code § 72-6-409(1).
27. Mont. Code § 72-6-412(2).
28. Mont. Code § 72-6-408(3).
29. Mont. Code § 72-6-407.
30. Mont. Code § 72-6-408.