Montana Code Annotated

Mont. Code Ann. § 72-3-101 (2026)

Devolution Of Estate At Death -- Restrictions

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TITLE 72. ESTATES, TRUSTS, AND FIDUCIARY RELATIONSHIPS

CHAPTER 3. UPC -- PROBATE AND ADMINISTRATION

Part 1. General Provisions

Devolution Of Estate At Death -- Restrictions

72-3-101. Devolution of estate at death -- restrictions. (1) The power of a person to leave property by will and the rights of creditors, devisees, and heirs to the person's property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates.

(2) Upon the death of a person, the decedent's real and personal property devolves to the persons to whom it is devised by the decedent's last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates or, in the absence of testamentary disposition, to the decedent's heirs or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property, and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

History: En. 91A-3-101 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-3-101; amd. Sec. 2314, Ch. 56, L. 2009.

Notes of Decisions
Cited in 13 cases (3 in the last 5 years), 1979–2023 · leading case: In Re the Est. of Harris, 2015 MT 182, 352 P.3d 20.
In Re the Est. of Harris, 2015 MT 182, 352 P.3d 20. · cites it 3× “Section 72-3-101(2), MCA. Section 72-3-606(1), MCA, provides a personal representative the general authority to take possession or control of devised property when “necessary for purposes of administration.”
Matter of Est. of Holmes, 599 P.2d 344 (Mont. 1979). · cites it 3× “Section 72-3-101, MCA. Having found the Mortmain Statute impliedly repealed by the adoption of the Uniform Probate Code, we need not address the constitutional issues raised by appellant.”
Matter of Est. of Wooten, 643 P.2d 1196 (Mont. 1982). · cites it 3× “Section 72-11-331, MCA. A specific devisee has the right to the remaining specifically devised property and to any balance of the purchase price (together with any security interest) owing from the purchaser to the testator at death by reason of sale of the property.”
In Re the Est. of McMurchie, 2004 MT 98, 89 P.3d 18. · cites it 3× “¶12 Section 72-3-101(2), MCA, provides that “[u]pon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will.”
Northland Royalty Corp. v. Engel Et, 2014 MT 295, 339 P.3d 599. · cites it 2× “Estate devisees take devised property “subject to” the estate’s administration, § 72-3-101(2), MCA, and a personal representative has the power to sell estate property if necessaxy for the estate’s administration.”
Isaak v. Smith, 848 P.2d 1014 (Mont. 1993). · cites it 6× “Section 72-3-101(2), MCA, provides: "Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will.”
In Re the Est. of Barber, 779 P.2d 477 (Mont. 1989). · cites it 2× “Moreover, the several accountings filed in the estate proceedings by the personal representative in this case were a continuing report to the court as a first and final accounting for the purpose of obtaining authority for distribution under § 72-3-101, MCA. A final accounting…”
Est. of Dower, 2021 MT 245, 495 P.3d 1083. · cites it 6× “" Section 72-3-101(1), MCA. These general provisions further provide that, at a person's death, their real and personal property "devolves to the persons to whom it is devised by the decedent's last will .”
Shephard v. Widhalm, 2012 MT 276, 290 P.3d 712. · cites it 4× “Section 72-3-101(2), MCA. She argues, however, that § 72-3-606, MCA, provides an exception to that general rule.”
Est. of Kemmer, 2023 MT 234, 539 P.3d 636. · cites it 3× “Section 72-3-915(1), MCA, provides that: Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or under the laws of intestacy…”
Est. of Elliot, 2022 MT 91N, 508 P.3d 1294. “He further claims that “[t]he Estate[’]s accounting only needed to examine Ada’s personal bank account and credit card accounts, so Womack could administrate and distribute the [E]state without having any involvement with StarFire’s management.”
Credit All. Corp. v. Wilhelm, 693 F. Supp. 884 (D. Mont. 1988). · cites it 2× “00 which is “exempt from and has priority over all claims against the estates”. Section 72-2-802, Mont.”
Mont. Code Ann. § 72-3-101(1): 3 cases
Est. of Dower, 2021 MT 245, 495 P.3d 1083. “" Section 72-3-101(1), MCA. These general provisions further provide that, at a person's death, their real and personal property "devolves to the persons to whom it is devised by the decedent's last will .”
Est. of Kemmer, 2023 MT 234, 539 P.3d 636. “Section 72-3-915(1), MCA, provides that: Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or under the laws of intestacy…”
Colbo Scott v. Coty Mahan, 601 P.2d 697 (Mont. 1979).
Mont. Code Ann. § 72-3-101(2): 8 cases
In Re the Est. of Harris, 2015 MT 182, 352 P.3d 20. “Section 72-3-101(2), MCA. Section 72-3-606(1), MCA, provides a personal representative the general authority to take possession or control of devised property when “necessary for purposes of administration.”
Matter of Est. of Wooten, 643 P.2d 1196 (Mont. 1982). “Section 72-11-331, MCA. A specific devisee has the right to the remaining specifically devised property and to any balance of the purchase price (together with any security interest) owing from the purchaser to the testator at death by reason of sale of the property.”
In Re the Est. of McMurchie, 2004 MT 98, 89 P.3d 18. “¶12 Section 72-3-101(2), MCA, provides that “[u]pon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will.”
Northland Royalty Corp. v. Engel Et, 2014 MT 295, 339 P.3d 599. “Estate devisees take devised property “subject to” the estate’s administration, § 72-3-101(2), MCA, and a personal representative has the power to sell estate property if necessaxy for the estate’s administration.”
Isaak v. Smith, 848 P.2d 1014 (Mont. 1993). “Section 72-3-101(2), MCA, provides: "Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will.”
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