South Carolina Probate Legal Questions

You need to continue paying the mortgage and you can reimburse yourself out of the estate.  If you don't make the payments it is subject to foreclosure.  Moreover, the estate needs to go through the probate court even without a will.  You need to be appointed PR so that you can probate your father's estate.  You can do this by petitioning the probate court in the county where the property is located.  By law, creditiors will have 8 months to make a claim and there may not even be any.  The house and all of his property will pass to his heirs.  ... Read More

This answer does not create a lawyer/client relationship.  I am a board certified internist and attorney in S.C.  You do not completely state the facts of the case.  If the probate court appoints someone executor then the answer is that it is OK.  It would be unusual for a non-resident to be able to properly carry out the duties required of an executor (personal representative) of a will.  If the probate court did not appoint the executor, you will probably need to hire a lawyer, as this can be tricky.   Regards, I am Michael G. Sribnick, M.D., J.D. Attorney at Law Owner of Michael G. Sribnick, M.D., J.D., LLC www.michaelsribnicklaw.com... Read More

Dear South Carolina, I just revived from fainting after reading your question-smile.  Let's see, 1977 was 35 years ago.....surely a few things have happened in your lives in 35 years which would require a revisiting (and possible revision) of your wills.  I suggest you run-don't walk-to an estate planning attorney and at least have your wills reviewed.  On the issue of filing, usually a will is filed at the time of death; however, some jurisdictions do allow filing of wills upon creation.  Congratulations on at least 35 years (if not more) of marriage and wishes for many more.... Read More

The most important thing to do is talk with a lawyer in your area that prepares Wills & Trusts, and hire him or her to properly advise you.  Moreover, since your question raises complex issues relating to legal capacity, and ownership of property, you should engage an attorney to prepare and oversee the proper execution of the instruments used to create the devise effectively, and efficiently.  Most typically, one would create a trust for the benefit of the minor. The trust could be inter vivos, or testamentary. Trust are complex, and under SC law governed under the SC Uniform Trust Code. However, the SC laws also allow for gifts to minors under the Uniform Gifts to Minors Act, which may be a useful tool to consider. This statement should not be construed as creating in any way an Attorney-Client Relationship.... Read More

I am an attorney in California so I answer with California laws in mind. Of course each state is different but I suspect my plan would work in most states.  If I were in your friend's shoes I would just go ahead and file a probate as if there is no will. He doesn't have to prove it's a forgery until the girlfriend brings it to Court.  If she has the nerve to present the fraudulent document then it would be attacked at that time. I would hire a probate and estate specialist and not a general practitioner.  Good luck to your friend.  -John... Read More

It's probably ok but to be safe you might want to ask the attorney to do a new will to replace that one. In the new will just clarify about the one not being legally adopted.  If there is the possibility of any one contesting the will it is better to be safe and re-do it! Good luck.  -John... Read More

Until the probate court names an Executor, no one is legally allowed go through a deceased person's assets and take or make changes to money or property addressed in a Will. Someone who had Power of Attorney has no authority once a death occurs. Powers of Attorney are automatically void on the death of the Principal (the person who gave the Power of Attorney to manage his or her affairs). Unless she was a beneficiary, a joint owner, or the probate judge has named her as Executor, your stepsister cannot decide what you do or don't receive. The probate judge orders how things will be distributed according to South Carolina laws. No one has to consult you. Hire an experienced estate attorney to explain things specifically and represent you. To your success,Gale Allison, Principal AttorneyAllison Firm, PLLCwww.theallisonfirm.comwww.linkedin.com/in/galeallison.com... Read More

You will not like my answer. I am sorry to say that you can't protect yourself now. Only your father can protect you. If, after the death of his first spouse, your father did put everything into Joint Tenancy with Right of Survivorship with his current spouse, the survivor (the current spouse) automatically inherits all property titled that way. This is true even if your father had a prenuptial agreement. Always remember, the title on any property trumps (overrules) any other document. There is no really gentle way to say this, but what all that means is that you are effectively disinherited.  However, consider also that it could have been unintentional: Your dad may have simply been trying to protect his new, young family and avoid the expense of a lawyer to set up a Will or Trust. He may not have understood the rules of Joint Tenancy and so may not have intended to leave you out. You might consider showing him this and asking him to do some formal estate planning which should include a Will and a Living Trust. He could still leave you something, but that, at the minimum, requires him to retitle the property consistent with the planning documents he uses. This is important: Signing a Will or Trust does not change the outcome without retitling the property. Because of the second family, I would suggest he use a good South Carolina Estate Planning lawyer to make sure that all details are completed properly, tax issues are thoroughly understood and planned, and to avoid problems later. To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/GaleAllison ... Read More