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LegalPro
LegalPro, Attorney
Category: Legal
Satisfied Customers: 589
Experience:  33 years legal experience in areas of criminal law, estates and probate, and real estate law.
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My father left me $50,000 in a valid will. Before he was deceased

Resolved Question:

My father left me $50,000 in a valid will. Before he was deceased on November 1, 2010, and while in a state of dementia he gave power of attorney to his spouse. The spouse transferred all of his property into her name before he passed away. Therefore, there was no property to probate. Do I have standing for a claim to the $50,000 in the state of South Carolina? If so, how should I proceed?
Submitted: 3 years ago.
Category: Legal
Expert:  LegalPro replied 3 years ago.

LegalPro :

I think you have a valid claim. The grant of the power of attorney likely still reserved with your father a fiduciary duty of the spouse to act in the best interests of your father. I would assess that thwarting the directives in his will was not acting in his best interest nor within her rightful powers as attorney-in-fact. You should have an attorney file a claim for your interest in the estate (probate) file, and be prepared to possibly go to higher court to contest the will or the power-of-attorney grant.

Customer:

Is it possible that the claim for my interest in the estate(probate) file could be self-filed without the use of an attorney?

LegalPro :

Yes, but your state most likely has a specific statute that specifies the form for a claim. If I can locate such a statute, I'll send it back to you in a further reply. A fairly experienced attorney who does general practice could greatly assist you in the particulars of legally asserting such a claim. Such a form is probably not among those used in common pro-se (non-attorney) practice.

Customer:

I could definitely use the statute that specifies the form for filing the claim. Otherwise, I guess I could visit the Clerk of Court at the Probate Court and the higher court in order to see how much I can do without the use of an attorney. It will not take much use of an attorney in order for my $50,000 to get eaten up.

LegalPro :

§ 62-3-804. Manner of presentation of claims


 


Claims against a decedent's estate may be presented as follows:


(1) The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and must file a written statement of the claim, in the form prescribed by rule, with the clerk of the probate court. The claim is deemed presented on the first to occur of receipt of the written statement of claim by the personal representative or the filing of the claim with the court. If a claim is not yet due, the date when it will become due must be stated. If the claim is contingent or unliquidated, the nature of the uncertainty must be stated. If the claim is secured, the security must be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.


(2) The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim, and the claimant must file a written statement of the claim as in (1) above, with the clerk of the probate court. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death.


(3) If a claim is presented under subsection (1), no proceeding thereon may be commenced more than thirty days after the personal representative has mailed a notice of disallowance with warning of the impending bar; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the thirty-day period, or to avoid injustice the court, on petition presented to the court prior to the expiration of such thirty-day period, may order an extension of the thirty-day period, but in no event may the extension run beyond the applicable statute of limitations.


 

LegalPro :

I just uploaded the statute that specifies the form of claims. But this matter may be complex. An attorney would be of great benefit in this type of case.

LegalPro, Attorney
Category: Legal
Satisfied Customers: 589
Experience: 33 years legal experience in areas of criminal law, estates and probate, and real estate law.
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