How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Legalease Your Own Question

Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14619
Experience:  15 yrs experience: Elder Law, Wills, Social Security Issues
20355756
Type Your Estate Law Question Here...
Legalease is online now
A new question is answered every 9 seconds

A few months ago my mother passed away. While she was still

Resolved Question:

A few months ago my mother passed away. While she was still in the hospital with her Sister and I present. She asked that we write her wishes in regards XXXXX XXXXX estate. I asked my Aunt to write the details, because I did not want any back lash from my siblings, stating I wrote what I wanted. So my Mother stated she wanted my siblings and I (three of us) to split her what was left of her retirement and pension equally. (the money had already been distributed evenly) and her land. She also stated the my two nieces and two nephews (the oldest is 14 years old) and I have the home and I have the car and to serve as Executor of her estate. The document has been signed by her Sister, myself, and a physician on duty as a witness. However, my Mother was not able and did not sign the document. Of course my siblings do not agree with me getting the home even though she left it to their children as well and I serving as Executor of her estate. Would that be considered a legal will with all the signatures except my mother? Now one of my siblings presented my other sibling and I with a form (Renunciation of right to administration and/or nomination and/or waiver of bond) to renounce my right to serve as Personal Representative of the captioned estate, agree to waive bond for the person(s) nominated below, and nominates the person to serve as Personal Representative. With that being said will that person be the only one to make decisions and execute actions ie. sell land or the home without the other sibling's consent? He states it's only to cash checks that come in my Mother's name. I'm just not comfortable about waiving rights of any sorts. Is there any type of recourse available without have everything tied up in probate?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Legalease replied 1 year ago.

Hello there

-

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?

-

MARY

Customer: replied 1 year ago.


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.

Expert:  Legalease replied 1 year ago.

Hello again -

-

Please bear with me and give me about 20 minutes to research and write up your answer. You do not have to remain online -- JustAnswer will notify you when an answer is posted and you can return to the website at that time if you would like.

-

MARY

Customer: replied 1 year ago.


Sure thank you

Expert:  Legalease replied 1 year ago.

Hello again.

-

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

-

MARY

-

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

Customer: replied 1 year ago.


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?

Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Legalease replied 1 year ago.

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.

-

MARY

-

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 !!

-

MARY

 

Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14619
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Legalease and other Estate Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
< Last | Next >
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
  • Thanks Adam!! - A very direct and understandable response - you have been a great help! Happy Customer Ellicott City, MD
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
 
 
 

Meet The Experts:

 
 
 
  • Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
< Last | Next >
  • http://ww2.justanswer.com/uploads/MC/mclemorelawyer/2011-9-21_193631_IMGP8718Version2.64x64.jpg Thomas McJD's Avatar

    Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Attorney

    Satisfied Customers:

    3781
    Licensed attorney helping individuals and businesses.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    2188
    13 yrs estate law, real estate. Wills/Trusts/Probate
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg RayAnswers's Avatar

    RayAnswers

    Attorney

    Satisfied Customers:

    1484
    Texas lawyer for 29 years in Estate law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Attorney

    Satisfied Customers:

    1226
    Experienced in multiple areas of the law.
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Attorney

    Satisfied Customers:

    770
    12+ yrs. of experience including estate law.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    754
    Fully licensed attorney in Texas in private practice.
 
 
 

Related Estate Law Questions

Chat Now With An Estate Lawyer
Legalease
Legalease
242 Satisfied Customers
15 yrs experience: Elder Law, Wills, Social Security Issues