terminally ill pts.

[lsl1]

my father recently passed away and i am the executor of his will. about 2 weeks before he went into hospice his wife took him and he signed over banking accounts and other properties to her. he was under the influence of a heavy dose of morphine or hydrocodone (he had both to take ) . was this legal, because now his will is a mess. p.s. i have a lawyer and he's no help.

 

[lwpat]

I am assuming that this is his second wife. You do have a case for undue influence but that is a long and expensive road. A lot depends on your state and what she was left in the will. She is entitled to her half of the marital property plus whatever percentage of his estate allowed under state law, usually at least one third.

If she does not claim her elective share or protest the will you may be better off, just depends on the facts. Get a new attorney. It is unexcusable that you have an attorney and have to post here.

 

[lsl1]

thank you for your input. she is protesting the will on every angle there is. she wants everything. and she wants the will to be null and void.

 

[lwpat]

I assume that the will is being probated and she has retained an attorney and is fighting your appointment as PR? On what grounds is she contesting the will?

 

[lsl1]

she is saying that under sc law that she is entitled to his estate and that he had told her the will read another way. she is even trying to take the trust fund money that my father left my children for college. thanks lsl

 

[lsl1]

she does have a attorney. she was only left with 1/3 of the house and she has life estate (i'm not sure that i have that worded right. she got to keep $80,000 that was in bank accounts that she had him sign over before he went into hospice. she also want hand over any of the information that my attorney has asked for as far as assets go. she won't give my son the truck that he was left in the will because she had him sign it over to her also. she took away the stock that was left to my son as well. their is a saftey deposit box that is to be opened this friday and she does not want me to be present. she only wants herself, her attorney, and my attorney to be present. thanks for all your help. lesley

 

[seniorjudge]

South Carolina Intestate Succession Laws

If any part of a South Carolina decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate, including both separate property and the one-half of community property that belongs to the decedent. However, the amount a surviving spouse is entitled to varies as follows:

* If there is no surviving issue (e.g., child or grandchild) of decedent, the surviving spouse is entitled to the entire intestate estate.
* If there are surviving issue of the decedent, the surviving spouse is entitled to one-half of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

1. Decedent's issue. If they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation.
2. Decedent's parent or parents equally.
3. Parents' issue or either of them by representation.
4. If none of the above relatives are available, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent or, if the issue are of unequal degree, those of more remote degree take by representation. The other half passes to the maternal relatives in the same manner. If there is no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
5. If none of the above relatives are available, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the surviving paternal great-grandparents in equal shares, or to the surviving paternal great-grandparent if only one survives, or to the issue of the paternal great-grandparents if none of the great-grandparents survive, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation. The other half passes to the maternal relatives in the same manner. If there is no surviving great-grandparent or issue of a great-grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
6. If none of the above relatives are available, but the decedent is survived by one or more stepchildren or issue of stepchildren, the estate passes to the surviving stepchildren and to the issue of any deceased stepchildren. If they are all of the same degree of step-kinship to the decedent they take equally. If they are of unequal degree, then those of more remote degree take by representation.

If representation is called for as indicated above, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner. If an interest created by intestate succession is disclaimed (i.e., legally refused), the beneficiary is not treated as having predeceased the decedent for purposes of determining the generation at which the division of the estate is to be made.

3. State of South Carolina. If there is no taker under any of the above provisions, the intestate estate passes to the state of South Carolina.

South Carolina Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* Issue of the decedent (but no other persons) conceived before his death, but born within ten months thereafter, inherit as if they had been born in the lifetime of the decedent.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of South Carolina gets the intestate estate.
* Irresponsible parents beware! Parents who failed to reasonably provide support for the needs of the decedent during his or her minority may have their intestate share of the estate reduced or eliminated entirely by the probate court. The probate court may consider this option upon the motion of either parent or any other person with a potential interest in the estate.
* South Carolina's intestate succession laws, as well as other related laws, can be found in Title 62 of the South Carolina Code of Laws.



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[seniorjudge]

The GENERAL rule is that the spouse can "take against the will" meaning that the intestate succession rules (see my prior post) take effect.

 

[lwpat]

She can claim against the will but you can ask the court to deduct from her elective share the amounts she had transferred.

Has the court named you as the PR of the estate? If so you can request the records from the bank, etc. and also subpoena the information from her.

Based on your posts you may need another attorney. He should have explained all of this to you when he was retained.