Estate Law Questions? Ask an Estate Lawyer.
Can you tell me what the total value of the estate is (breakdown into personal property and assets and value of the real estate)?
Was the document written up in front of your mother executed by a notary public (in addition to the witnesses)? Or was it just the witnesses?
Other than this document, is there any other will - perhaps written earlier than her last hospital stay that you are aware of?
Do not have the total value of the estate.
It was just the witnesses
There is no other will prior to her last hospital stay, that we are aware of.
Hello again -
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Sure thank you
The reason why I asked the value of the estate is because there is something called a "small estate" administration procedure in every state where, if the estate is worth a small amount of money, that the entire thing can be handled through a written affidavit of the personal representative to the estate and the matter never has to go in front of a judge. However, this small estate procedure in SC is available to estates where there is personal property and bank accounts/IRA's etc that are less than a total of $10,000. However, if the house was in your mother's name on the deed at the time of her death, then the house will also take the estate outside and above the small estate guidelines. This means that the estate must go through the general probate procedure in the full probate court.
To start the probate court procedure, the person who has been named the executor in the will must approach the court and complete the paperwork that your sibling is trying to get you to sign. From the actions of your siblings with this appointment of a personal representative paperwork, it is fairly obvious that they are not going to recognize the document that your mother was involved with as her last will and testament and they are going to apply to the court to administer the estate as if she had died without a will (intestate). If your mother died without a will and had no spouse at the time of her death, then her estate is divided equally between her surviving children, period. No one else is entitled to anything else. It seems that this is the way they want to play it.
There is some question here regarding whether or not the hospital document will be accepted by the court as her last will and testament. While SC is one of the few states where a notary is not required to witness a last will and testament, SC law still requires that the testator (your MOM), be legally competent, sign or acknowledge the document and that the document be witnessed by two independent witnesses who are not related to each other or the testator. Unfortunately, the only witness who qualifies here is the physician (because you and your aunt are related to each other and to the testator and even if the law was not clear on this in SC, that still amounts to a conflict of interest in ALL states). Secondly, while your Mom was probably awake and aware of what was happening, she still needed to sign or acknowledge the document (many people make the mistake of thinking that someone has "acknowledged" a document simply because they state "yes, I understand it" in front of a witness or two. However, that is not a legal acknowledgment -- a legal acknowledgement would require that your mother make some mark upon the document to acknowledge that she had read it and understood it -- typically that acknowledgement mark would be an " X " or a scribbled first name -- generally used in the days before everyone knew how to read and write their own name and thus such an "acknowledgment" on a will was traditionally acceptable so long as the two independent witnesses confirmed later that the person they knew as John Doe executed the mark or the acknowledgment). So, in viewing the totality of the circumstances about this hospital document and the SC statutes regarding the validity of wills, I do not believe that the probate court will use this document as your mother's last will and testament and will split the estate using the intestacy statutes - which leaves the property 50% to a surviving spouse and 50% to surviving children (and if there is no spouse then the estate is split 100% between the children). This is not to say that this document did not and may not have any legal standing in the matter of a probate case. If there were disagreements between the 3 of you about which child gets which piece of personal property and your mother had actually addressed things like that in this hospital letter, then the court may use the letter to divide up some of the smaller items in the estate to prevent arguments among relatives and children. In this case, if your mother's car is not worth a lot of money for the book value then you may be able to convince the court not to sell it as part of the estate and to let you have it in accordance with your mother's final wishes. SO, you might be able to get the court to use it as a guide for smaller items -- but as far as leaving the house to your siblings children (instead of your siblings) -- the court will not honor the document in this regard (I am sorry).
Finally, the document you are being asked to sign is a serious document that will be used to administer your mother's entire estate (not just to "cash checks and stuff until the estate is settled"). This is the document that requests that the court appoint an executor and whomever is named as that personal representative will become the executor of the estate (it will not be you if you sign the document) -- you can refuse to sign it and tell your siblings that all three of you can request that the court appoint an executor rather than one of your siblings taking it over and the other agreeing to it (and trying to fool you into agreeing to it by downplaying the importance of the document). Then you should use the hospital letter at that point and if you want to be named the executor of the estate then ask the judge to appoint you as your mother had wanted in her final attempt to pull a will and testament together before she died (as I said, even if it falls short as a legal will -- the court can use some of what is in it up to their own discretion).
I hope that all of this helps. While I am sorry that I could not give you better news on the document that your mother acknowledged in the hospital, I was at least able to tell you what it all means and what the document your siblings want you to sign actually means (so they cannot pull any fast ones on anyone). Please let me know if you have any further questions. If not, can you please press the 3rd, 4th or 5th smile face below this answer box to pay me for my time. THANK YOU
Please let me know if you have further questions. If not, can you please press the 3rd, 4th or 5th smile face below this ANSWER BOX so I will be paid for my time. I am paid NOTHING unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money --- it simply acts as a trigger for JUST ANSWER to pay me for my time in assisting you tonight !! THANK YOU
Is there any type of form or written letter we can use that states even if he is the executor all three of us has to consent before any decisions are made in regards XXXXX XXXXX estate. Such as an amendment?
Hello there -
I apologize for the delay in responding to you earlier but I had to go offline for the balance of the day (I teach two lecture workshops in paralegal studies at the local community college and returned about an hour ago).
Regarding the last question that you posted -- the three of you can certainly come to a written agreement regarding your duties as joint administrators of the estate, but if you only put one name down on the form that was presented to you for signature and that form is submitted to the court for the judge to appoint the estate's personal representative, then the court will not enforce any side agreement that the three of you entered into regarding the overall administration of the estate (that is the purpose of the personal representative appointment form -- so the judge only has to deal with one estate administrator). If you want all three of you to be co-executors of the estate, then you will have to put all three names down on the court form and ask the judge to appoint all three of you as co-executors of the estate -- that way you will all have an equal say in the disposition of the estate real estate and personal property and the judge can place an order in the case file that states that all matters are to be decided by either unanimous or majority vote of the three of you). All things considered here, the botXXXXX XXXXXne is that if you sign the form as presented to you then you will most likely be cut out of the administration of the estate and will end up having very little say in how anything will be distributed -- and all of the decisions will be made by the sibling who is / has been appointed as the personal representative of the estate by your own signature.
Please let me know if you have further questions. If not, can you please press the 3rd, 4th or 5th smile face below so I will be paid for my time assisting you tonight. I am paid NOTHING unless you press a positive rating below -- pressing the 3rd, 4th or 5th smile face below will not cost you any additional money - it simply acts as a trigger to Just Answer to pay me for my time (and you can continue to ask follow up questions on this matter even after you press a positive rating).
THANK YOU VERY MUCH !!
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