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Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 54023
Experience:  29 years of experience practicing law, including tax and estate planning.
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My husband has durable power of attorney for his mother, his

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My husband has durable power of attorney for his mother, his name is XXXXX XXXXX savings and checking accounts, he is also representative payee for her social security. His mother is in assisted living and has dementia. In the process of handling her affairs (selling her home and cars) we can not find her will. My question is: If she were to dye what happens with her estate? And what can we do to fix this?
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good morning. If his mother were to die without a will, then she would be deemed to have died intestate. In that case, her probate assets would be distributable pursuant to the Montana intestate succession rules. Certain assets are not probate assets and are not governed by the intestate succession rules. Those include: i) joint brokerage and bank accounts which vest automatically in the surviving owner upon the death of one owner; ii) real property held as joint tenants or tenants by the entirety, which also vest automatically in the surviving owner upon the death of one owner; and iii) assets with designated beneficiaries other than the estate such as life insurance and retirement accounts.

With respect to the probate assets which will pass pursuant to the intestate succession rules, it depends on who survives the decedent. I have provided the Montana statutory general succession priorities for you below:

If there is a surviving spouse, MONT CODE ANN § 72-2-112 : Montana Code - Section 72-2-112: SHARE OF SPOUSE provides:

The intestate share of a decedent's surviving spouse is:
(1) the entire intestate estate if:
(a) no descendant or parent of the decedent survives the decedent; or
(b) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent but a parent of the decedent survives the decedent;
(3) the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.


For probate assets not going to the surviving spouse, MONT CODE ANN § 72-2-113 : Montana Code - Section 72-2-113: SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE provides:

(1) Any part of the intestate estate not passing to the decedent's surviving spouse under 72-2-112, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) to the decedent's descendants by representation;
(b) if there is no surviving descendant, to the decedent's parents equally if both survive or to the surviving parent;
(c) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
(d) if there is no surviving descendant, parent, or descendant of a parent and the decedent is:
(i) survived by one or more grandparents or descendants of grandparents:
(A) one-half to:
(I) the decedent's paternal grandparents equally if both survive;
(II) the surviving paternal grandparent; or
(III) the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
(B) the other one-half to the decedent's maternal relatives in the same manner; or
(ii) not survived by a grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate to the decedent's relatives on the other side in the same manner as the half;
(e) if there is no surviving descendant, grandparent, or descendant of a grandparent, to the person of the closest degree of kinship with the decedent. Except as provided in subsection (2), if more than one person is of that closest degree, those persons share equally.
(2) If more than one person is of the closest degree as provided in subsection (1)(e) but they claim through different ancestors, those who claim through the nearer ancestor must receive to the exclusion of those claiming through a more remote ancestor.



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Richard and 3 other Estate Law Specialists are ready to help you
Thank you for rating. I work hard to make sure each of my JustAnswer customers is fully satisfied. So, if there is any additional information I can provide to make sure you are completely satisfied, please let me know and I'll be happy to provide any additional help needed. Thanks again!
Customer: replied 3 years ago.
please clarify (to the decedent's descendants by representation). What do you mean (by representation)?
Does he need representation as a descendant?
Thanks for following up. No, he does not need representation as a descendant. The best way to explain this is by example. For example, if your husband is an heir and were to predecease his mother, then his children would divide the share he would have received from his mother's estate had he been alive. Hope that clears things up, but if not, let me know. :)

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