9 Critical Estate Planning Mistakes to Avoid in Montana: Expert Advice for All Income Levels

9 Critical Estate Planning Mistakes to Avoid in Montana: Expert Advice for All Income Levels

September 6, 2024

Tanko Law Montana

When you think of estate planning, do you think of planning your own future, or simply the lives of the rich and famous? Exotic destinations, sports cars, luxury yachts, mansions and the like? Well, the truth is everyone from society’s elite to the elderly widow on Main Street, USA has an estate worth planning, which means everyone, regardless of their wealth can suffer the same mistakes in doing so.


Planning for Incapacity: Legal Documents You Need


In Montana, you are considered an adult at age 18. Up to that time, an individual younger than 18 is considered a minor and his or her parents or legal guardians make decisions concerning that person’s health, welfare, and financial well-being. On your 18th birthday, you become solely responsible for own personal, health care and financial decisions. To address these needs in time of incapacity, it is necessary that you appoint an agent to make health care decisions for you and manage your financial affairs. The only way to do that is to create a Durable Power of Attorney for Health Care Decisions and a Durable Power of Attorney for Asset Management. Minus these documents, the only way to cure these legal “illnesses” is through court proceedings involving as many as 3 attorneys – a very expensive endeavor indeed.


Protecting Minor Children: Importance of Guardianship Designation


What happens to your minor children if you were to become incapacitated or pass away? For us parents, the very thought of leaving children in such a vulnerable state is unfathomable, but sadly this story unfolds time and again. Thankfully, under Montana law, you are permitted to name “backup parents,” called Guardians. These persons may be designated in your Last Will and Testament, and would receive preference before the court in so serving. A Guardian is vested with the same duties and responsibilities as a parent, and most importantly, the persons you believe best share your values and moral code to impart upon your children. Absent these designations, it is possible your children could be wards of the State, falling into foster care, or be ordered to spend their remaining youth with persons you least likely would have chosen.


Estate Taxes: Strategies to Minimize Tax Burden


The only two certainties in life are death and taxes. – Benjamin Franklin. Our form of government has made sure it will collect its rightful share during your lifetime and even at death. To keep the government at bay, our Supreme Court has ruled that no person should be forced to pay more than his or her share of taxes. A proper well drafted, proper estate plan can ensure you pass on to your loved the ones the maximum amount quickly and efficiently.


One tool used quite often is a Revocable Living Trust. This document can avoid probate, streamline administration, and under specific circumstances, eliminate the payment of federal estate taxes. Living Trusts are just one of a variety of estate planning tools available to you to protect your assets and minimize taxes.


Long-term Inheritance Planning: Protecting Your Legacy


You’ve worked hard to earn your fortune. You saved, invested, and protected your wealth for your own well-being, and those you love. Nothing is more maddening than seeing a lifetime of success squandered by spendthrift children, malcontent spouses, or plain misfortune – divorce, bankruptcy, etc. Long-term Inheritance Planning allows you to devise the terms and conditions upon which your estate will pass to your loved ones. Planning alternatives may include age timing of distributions, education requirements, asset protection planning, and more to best carry out your legacy.


Multi-State Property Ownership: Avoiding Probate Complications


Multi-State Administration. Generally, personal property, such as bank accounts, insurance proceeds, stocks, bonds, etc. are subject to estate administration under the laws of the state where the deceased was a resident. Real property, be it a home, commercial property, or unimproved land, is subject to administration in the state where that land is located. Unless you take legal precautions to address the administration of your personal property and real estate holdings, your estate could be diminished by the expensive costs of probate in multiple jurisdictions.


Retirement Planning: Preserving Wealth for Spouses and Heirs


Retirement plans single-handedly hold the largest amount of wealth for American today. Preserving this wealth between spouses and for heirs is risky business. Without careful consideration of your retirement plans, you could lose a majority of that to the government. The question you have to ask

yourself is can you afford not to plan?


Business Succession Planning: Ensuring Your Company's Future


Even though 70% of America’s businesses are considered small businesses, less than 30% survive following the death of their founder. Family businesses have provided growth, prosperity, and opportunity for families and without succession planning there is no hope that this will continue. Business succession planning can involve the use of insurance products, estate planning tools, and asset protection tools to meet the demands of today’s complex business environment.


Joint Tenancy: Potential Pitfalls to Avoid


A common misconception is that people believe titling all of their assets jointly with their spouse or children or heirs will best avoid the complications of estate administration. Nothing could be further from the truth. Assets left in joint tenancy will undoubtedly avoid probate administration, but the costs may be too much to bear. Joint tenancy assets are subject to creditor claims of all of the joint tenants, even those who contributed nothing towards the property. Furthermore, such transfers upon death may actually increase the amount of federal estate taxes paid on the property.


The Importance of Creating and Updating Your Estate Plan


A mere 30% of Americans have actually taken the care and time to create an estate plan. And of those who have, very few have reviewed or updated their existing plans. The result is an unintended cost of administration, frustration among family members, and unrealized expectations. If you have an estate plan, now is the time to review it carefully. If you have no plan in place, now is the time to create one. Call us today for your free consultation to see what we can do for you.


For more information, please contact Estate Planning Attorney Brian C. Tanko at Tanko Law Office 406-257-3711, or visit us on our website at www.tankolaw.com and Facebook at:www.facebook.com/tankolaw

< Older Post Newer Post >

Talk to a Montana Estate Planning Attorney

Brian Tanko brings over 20 years of experience as an attorney, CPA, and Certified Fraud Examiner to every estate plan. Schedule a consultation to discuss your situation.

Latest Posts

Montana Trust Laws: What You Need to Know | Tanko Law

Montana Trust Laws: A Guide to the Montana Uniform Trust Code

By Tanko Law Montana • May 25, 2026
Creating or administering a trust in Montana? Learn the key statutes, trustee duties, tax rules, and common mistakes, from a Montana trust attorney.
Revocable vs Irrevocable Trust: Key Differences Explained

Revocable vs Irrevocable Trusts — Which One Is Right for You?

By Tanko Law Montana • May 22, 2026
Revocable vs irrevocable trust: Discover key differences, asset protection benefits, tax impact, and which trust is right for your Montana estate plan.

Do You Need a Lawyer to Start a Business in Montana?

By Tanko Law Montana • November 24, 2025
Starting a business in Montana is an exciting prospect, drawn by the state’s scenic vistas, expanding economy, and a culture that encourages entrepreneurship. From Bozeman’s tech scene to the rural revitalization of small towns, Montana’s business environment is ripe with opportunity. Naturally, this raises a crucial question for hopeful founders: Do you need a lawyer to start a business in Montana? The short answer is no—Montana law does not require entrepreneurs to hire an attorney. However, relying solely on a do-it-yourself approach can carry significant risks. Legal counsel often proves invaluable, ensuring your business is built on a solid legal foundation and helping you avoid costly missteps. The “Do-It-Yourself” Approach: Step-by-Step Guide Many entrepreneurs choose the DIY route, leveraging online resources and the state’s accessible filing systems. Here’s what the journey typically looks like: Choosing a Business Structure: Decide whether to operate as a sole proprietorship, LLC, corporation, or another entity. Each has different implications for liability, taxes, and management. Naming the Business: Select a unique name and verify its availability via the Montana Secretary of State before registering. Appointing a Registered Agent: Montana law requires every business to designate a resident agent who can accept legal documents. Filing Formation Documents: For an LLC, file Articles of Organization; for a corporation, file Articles of Incorporation—these can be submitted online. Obtaining an EIN: Secure an Employer Identification Number from the IRS for tax purposes and to open business bank accounts. Registering for Permits and Licenses: Depending on your industry and location, you may need state or local permits and licenses. DIY Resources make this process smoother: The Montana Secretary of State’s website features an easy-to-use online business portal. Free and paid templates exist for basic legal documents like operating agreements and bylaws. Business formation services (LegalZoom, ZenBusiness, etc.) offer step-by-step assistance for a fee, but these won’t provide personalized legal advice. The Hidden Dangers of Going Solo While Montana makes starting a business accessible, there are pitfalls if you proceed without professional legal guidance: Choosing the Wrong Business Structure: A mistaken selection can expose your personal assets to liability or result in unexpected tax bills. The stakes are even higher for partnerships or multi-member LLCs, where misunderstandings multiply. Legal Documentation Errors: Without a tailor-made operating agreement or bylaws, disputes among owners become more likely. Incomplete or incorrect filings can delay the start of your business or threaten its legal standing. Most importantly, you may unknowingly sign documents with significant and sometimes detrimental legal weight. Compliance Issues : Missing a single required license or failing to comply with Montana employment laws can lead to expensive fines, legal troubles, or even forced business closure. Overlooking trademark and copyright protections exposes you to intellectual property disputes down the road. The Value of an Attorney: Far More Than a Form-Filler An experienced Montana business attorney is more than just someone who files paperwork. They become a strategic partner who can: Guide You to the Right Structure : Attorneys analyze your business goals and recommend the right entity for liability protection and tax efficiency, explaining the long-term consequences of each option. Draft and Review Critical Documents: A lawyer crafts operating agreements or bylaws that reflect your business’s specific needs, making sure all paperwork aligns with state law and offers genuine protection. Proactively Manage Risk: From anticipating disputes to helping with contracts and lease agreements, legal counsel protects you from costly mistakes. As your business grows, ongoing legal advice helps you navigate changes in law, ownership, or structure. Conclusion While Montana’s pro-business climate makes DIY company formation tempting, skipping legal counsel is a gamble. Mistakes in the choice of structure, documentation, or compliance can jeopardize both your investment and personal assets. The cost of a lawyer may seem unnecessary up front, but it often saves much more by avoiding problems later. Ultimately, entrepreneurs should—at minimum—seek an initial consultation with a knowledgeable Montana business attorney. Understanding your unique risks and requirements before launching ensures your new venture is both successful and secure. If you’re looking for an expert Montana business attorney, contact Tanko Law !