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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 36233
Experience:  16 yrs estate law, real estate. Wills/Trusts/Probate
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My father passed away in May of 2015. He left in s will that

Customer Question

My father passed away in May of 2015. He left in his will that my brother receives the house and the land. My mother was living in the house with him when he passed away. His wife of 48 years. My brother told her she wasn't getting anything. I hired an attorney 10 months so she can get her part of the estate. My attorney also had him suspended as personal representative because he was not doing his duties as PR. He hired the same attorney who helped my father with the will. We had to go to court today to see if my brother would get reinstated or removed from PR. The judge reinstated him because she said there wasn't enough proof to suspend him. He also said that my attorney didn't file within the eight months for my mother to get he share of the estate. The attorney had 10 months to file and when the judge asked why he didn't file within the eights months he had no answer. I guess he was too busy. My question is: Is it too late for my mother to get her share of the estate? My brother doesn't want her to have anything. This is a sad situation. Thanks. I will wait for your answer. -Nelson in South Carolina.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

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I really hate to give bad news but the South Carolina Probate Code provides a procedure whereby the surviving spouse of a person domiciled in this state may claim an elective share of one-third of the decedent's probate estate.  

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Section 62-2-205(a) provides:

The surviving spouse may elect to take his elective share in the probate estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.

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So I really hate to say it, but unfortunately if she didn't act within those timeframes, then her right to pursue a claim against the estate would expire and become time barred. Statutes of limitation are set in stone so as to provide finality to a legal case and once they pass, they prevent any further action or claims..

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At this point, if the attorney was hired to file a claim and failed to do so within the statute of limitations, that is malpractice on his part and mother would have legal grounds to sue him for malpractice for what she would have received by law had he done his job and filed appropriately.

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I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience,even when I know the answer doesn’t make the customer happy...

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thanks

Barrister

Customer: replied 1 year ago.
I understand your answer. If my mother and father was living together and their home was in his name and went out and had a will drawn up so if anything happens to him, it goes to my brother instead of his wife, you're telling me thats legal? My mother attorney had him suspended because he wasn't doing what the PR was suppose to be doing. She's now out of a home because of my Dad's will. My question is, did she had 8 months to file to receive a part of their estate even though she lived with him until he died?
Expert:  Barrister replied 1 year ago.

If my mother and father was living together and their home was in his name and went out and had a will drawn up so if anything happens to him, it goes to my brother instead of his wife, you're telling me thats legal?

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Unfortunately, if it is only in his name, then it appears as though he is the sole owner, so it would pass according to his will.

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My question is, did she had 8 months to file to receive a part of their estate even though she lived with him until he died?

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Yes, she had 8 months to make her "spousal election" claim against his estate if he didn't provide for her in his will. If she didn't' do so, then she loses that right. But if she trusted the attorney to file the claim, and he didn't do so, then it it the attorney who is liable for her losses.

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thanks

Barrister

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