Probate in South Carolina Estate

[MT and SC]

Jurisdiction

South Carolina

Forum readers,

Our mother passed away recently in South Carolina, yet she was legally married to another man who was not the father to me and my brother. Our mother made me her estate's executor and named me with 100% of the residuary estate, which was not much in the grand scheme of things. That being said, we have a family business S-corp upon which my brother owns 10% and I 30%. The business and its assets are the largest single thing the family owns. Mom owned the other 60%, which I assumed went to me as she did not notate who her shares would go to as per the residuary estate holder, until I found our parents divorce agreement and read it for the first time. The divorce decree (from the 1980's) from our parents states if one of our parents dies, any shares they own should be given to the child with less shares, my brother, until we both have equal shares. Whatever is left over would be split evenly between us, essentially giving us a 50/50 of the S-corp. This was signed by both of our parents, witnessed, notarized and filed with the county court as their final divorce agreement. Fast forward over 30 years later and our mom's husband is trying to claim 1/3 elective share of the estate, which we think he is entitled to 1/3 of the S-Corp.

So I have a few questions for those here, although we have just hired lawyers to handle this. The lawyers think the s-corp will have to go through probate. Would not the divorce decree supersede any 1/3 elective share claim made by our Mom's husband to claim a portion of the S-corp? Even if the husband could make such a claim, would not any assets willed to him by our Mom offset his elective share? And if he were to get 1/3 share of the probated estate, would it not just be 1/3 of the 60% Mom owned of the S-corp (20%)? On top of that, how can the husband make a claim on this if I am the residuary estate holder?

Thanks for your input.

Confused about Probate.

 

[army judge]

I have a few questions for those here, although we have just hired lawyers to handle this.

I suggest you consult the attorneys you've retained to protect and represent your interests.

Don't share your financial and confidential matters with internet strangers.

The planet is overflowing with tricksters, scammers, shysters, grifters, and all manner of those intent on divesting you of your wealth and worldly assets.

Be very cautious, protect yourself from those whose only intent is to steal from others.

 

[adjusterjack]

I think that the divorce decree is irrelevant and has been superseded by the will and/or laws of intestacy.

Rely on your lawyer. That's what you pay him/her for.

 

[welkin]

I think that the divorce decree is irrelevant and has been superseded by the will and/or laws of intestacy.

Jack, I disagree with you. It still states the intent of the parties involved upon their deaths. But the attorney will sort it through.

The reason I say this, is because I have a friend that had a very similar salutation. It took several years to resolve but, in the end, the new husband was not intitled to any interest in the business.

 

[adjusterjack]

You could be right. Hence my hedging.

 

[zddoodah]

we have just hired lawyers to handle this. The lawyers think the s-corp will have to go through probate.

In the sense that the shares are part of her estate, and her estate (likely) needs to be probated, I agree.

Would not the divorce decree supersede any 1/3 elective share claim made by our Mom's husband to claim a portion of the S-corp?

That's a question only a local probate attorney who has reviewed the relevant documentation (including the corporation's by-laws) will be able to answer.

Even if the husband could make such a claim, would not any assets willed to him by our Mom offset his elective share?

As far as I know, no one who posts here regularly is an attorney in South Carolina or has any particular knowledge regarding the SC elective share law. My general knowledge of elective share laws is that, if a surviving spouse seeks an elective share, then he/she has to give up any specific gifts.

And if he were to get 1/3 share of the probated estate, would it not just be 1/3 of the 60% Mom owned of the S-corp (20%)?

As opposed to? Keep in mind also that 1/3 of the estate doesn't necessarily mean 1/3 of every asset in the estate.

On top of that, how can the husband make a claim on this if I am the residuary estate holder?

I don't understand the question. You said you've hired an attorney, and your attorney will provide better answers than anyone on an internet message board.