Anyone out there know anything about Probate Court?

Question

My fiance's mother passed away last week from colin cancer, she didn't have a will & his step dad is telling him that he isn't intitled to ANY of his mother's esstate. My ? to all is... whats the low down on probate? We have a lawyer. But we want to know what are some things we need to know before all of this gets blown up in court. All we know about his mom is that she had...a car in her name, she owned half of the home, and half of her huspands truck. We know that she had Life Insuance, & a retirement plan. My fiance's step dad is also telling us that he is going to get rid of his mom's car. Is this legal? Can he do any of this without even putting anything into probate? Is there anyone out there that has been in this same situation that might have some advice? The reason I am asking about all of this is because my fiance' has already lost one parent (his father) 2 years ago... He was left out of everything because of his stupid step mom. Please Help!

We live in South Carolina

Answer 1

Hi. I've been a legal assistant for 25 years. Please know the step-dad is most likely BS-ing you guys. No will from the deceased means your fiance may very well be entitled to a portion of his mother's estate, regardless if she was married or not. With no will, the law normally steps in and makes proper division of the assets of the estate. This can be a long, drawn out process. Each state may vary in what percentage a spouse gets if the other spouse has surviving children from a previous marriage(your fiance), i.e. perhaps the surviving spouse will get 50% and your fiance 50%, or it could be divided 70/30. If you have an attorney worth his salt, he should have explained this to you. The attorney needs to file for an injunction or bring a motion before your local court to prevent the step-father from disposing of ANY asset of the estate, until an inventory can be completed. If the step dad contests the motion on his own or with his own attorney, the court will appoint a guardian ad litem (as such a disinterested 3rd party that is an attorney, that will basically represent the deceased's interest/estate to review, assess and inventory the estate. Thereafter, again, according to your state's law, the estate will then be divided proportionately. Be advised that once the court orders the injunction or the motion is approved and a Court order is issued, there are sanctions (penalties) that can be instilled upon the step father for contempt should he dispose of any assets in the interim. As to things like cars, the court will probably order the vehicle be sold and again, profits would be proportionately divided. For insurance policies, who gets it depends upon who is listed as beneficiary of the policy at the time of his mother's death. It could be the step dad, your fiance or whomever his mother chose. Please don't feel alone, this happens all over the country and especially when "blended families" are involved. I hope this helps!

Answer 2

Probate is a long drawn out process, and in most states (not positive about SC) a personal representative is selected. The personal representative is usually the surviving spouse.

Probate in this case would be there to settle a dispute between people who both think they have a claim to the property left by the deceased. Your fiance will have to prove taht he is ENTITLED to the property, not just that he "wants some of it". Not only that, but he will have to prove that he is entitled to it mroe than the surviving spouse, difficult at best.

If there is something that your fiance wants that is of sentimental value, then ask for it, most people with a shred of decency, would give it to him.

If you have an attorney who is promising you the moon (for a fee of course) get a second opinion, nothing is certain in a courtroom.

Remember that her husband is responsible for all of her debts as well, so while it may seem that she had a lot, when it comes to lingering illnesses, many estates are drained by debt, and are not worth nearly as much as many people think they are.

Answer 3

If you have a lawyer, he should answer these questions for you but:
Life insurance goes to the 'Named Beneficiary" of the policy. It is not part of the Estate.
Probably the same for the retirement plan unless there's no beneficiary and value remains in the plan.
The rest of the assets are subject to probate.
The rules for a person dying without a will vary from State to State but you fiance probably has an interest.
It is generally illegal for anyone but a court appointed executor to dispose of any assets of the estate.

Answer 4

once you ask a criminal question, you're able to be able to desire to let us know what state you're in. you will get extra helpful solutions. besides, if mom lived in a community sources state jointly with California, her husband will probable get to maintain each and every thing that became into held as community sources, such via fact the abode and truck. Many states do no longer require an entire-blown probate case for that, purely a short "community sources statement" filed with the court and information that those products have been community sources. As for the assurance and retirement plan, those frequently do no longer ought to bypass by using any probate proceeding. quite, mom could have exact a beneficiary via telling the assurance organization and the retirement plan administrator, in writing, who to pay while she died. If that became into the stepdad, end of tale. the automobile in her call on my own could be annoying for stepdad to sell, as he would not have call to it. yet lower back, many states have shortcut probate lawsuits for "small estates". Technically, he could ought to have some probate court supply him an order so he could have complete call to the two autos, and the abode. Now a query for you--in case you have a lawyer, why isn't he/she telling you those issues? it incredibly is you pay them for.