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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33802
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My mother passed away recently without a will and it appears

Customer Question

My mother passed away recently without a will and it appears that all of her marital property and general contents of the home will fall under the rights of survivorship. I am her only biological child but there are two step children. The relationship between my stepfather and myself has always been rocky and I know how precarious the future can be. I fear that I will never receive a fair child portion now or in the event of his death. Is there anyway to contest the right of survivorship law and possibly put her marital half in my name to protect it from being sold without my knowledge with the condition that it will be split between myself and my two step siblings at the time of his death??
Submitted: 9 months ago.
Category: Estate Law
Expert:  Barrister replied 9 months 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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Is there anyway to contest the right of survivorship law and possibly put her marital half in my name to protect it from being sold without my knowledge with the condition that it will be split between myself and my two step siblings at the time of his death??

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Unfortunately, if mother held assets as joint tenants with right of survivorship with father in law, then they instantly pass as a matter of law upon mother's passing. So there is nothing to contest from a probate perspective because those assets don't go through probate. They transferred at the moment of death so there is no "marital half" at this point.

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Only assets that were in mother's sole name, were her personal property, or were owned as "tenants in common" with someone would be in her estate now and would go through probate.

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So no, there is no way to challenge this as it simply an established way that assets are transferred outside probate.

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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 9 months ago.
Is there a way to protect myself outside of probate??
Expert:  Barrister replied 9 months ago.

I am not sure what you mean "protect yourself"....from what?

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thanks

Barrister

Customer: replied 9 months ago.
My mother passed away at the age of 64. My step father is a few years younger than her. What can be done to protect my child's portion, at the valued amount of their estate right now, in the chance that he remarries or he creates a will before his death leaving his biological children more??
Expert:  Barrister replied 9 months ago.

What can be done to protect my child's portion, at the valued amount of their estate right now, in the chance that he remarries or he creates a will before his death leaving his biological children more??

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I am sorry if I wasn't clear. If they owned everything jointly, then there is no "child's portion". The stepfather became the sole owner of everything that they jointly owned at the instant that mother passed.

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That is why people take title to things as "joint tenants"....so the survivor instantly becomes sole owner and doesn't have to go through probate.

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So anything that they owned jointly is now owned solely by stepfather and he can leave it to whoever he wants to in his will. He is under no legal obligation to leave it to anyone....his children, his stepchildren, etc. He can leave it all to charity or the church or pick out his favorite child and leave it all to them.

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As for her personal property (jewelry, personal furniture, personal antiques, photos, etc.) those would be considered to be owned by her estate now and would need to go through probate unless the family can decide privately how to divide up those items so as to eliminate the need for a probate case.

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thanks

Barrister

Customer: replied 9 months ago.
When you look up the laws for SC it only mentions "intestate succession" for biological heirs, with no mention of rights of survivorship??? Please explain this further
Expert:  Barrister replied 9 months ago.

Right, intestate succession just means that someone died without a will, so state law controls who inherits. But your stepfather is not your legal father so you are not in his bloodline to inherit if he didn't have a will. So if he died with a will, the assets go to whoever he stated in the will. If he dies without a will, his biological family will inherit through intestate succession.

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But when mother and stepfather owned everything jointly, when one of them passes, the survivor becomes the sole owner of those assets.

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So if everything they owned was jointly owned, then when mother passed, stepfather then became sole owner of everything and you would only inherit if he names you in his will as a beneficiary.

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks

Barrister

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