Serving Barnwell County and it's neighbors since 1852
Q – My father died some months ago without a will. The daughter of his second wife is giving his personal items, like guns and tools, away without consulting me and my stepmother refuses to answer my calls. My Dad and I were very close, and it hurts to know I will have nothing passed down to me, even pictures of my childhood and my grandfather’s pistol. I know some accounts and property were jointly owned and it was a long second marriage of 20 years, but Dad had a retirement plan and 401K that I guess are payable to her. What rights, if any, do I have as the only biological son still living?
A- When a parent dies without a will under South Carolina intestacy law biological children are entitled to ½ of the probate estate of a parent and the surviving spouse is entitled to the other ½. Those joints accounts and the 401k are likely not part of the probate estate, but the gun probably is. As 30 days have passed since your father’s death you can file a petition with the probate court in the county where he resided or owned real property to be named the personal representative of your father’s estate. You need to file a death certificate and pay the filing fees. However, his surviving spouse has priority for appointment under the law and she can also file and nominate someone to serve in her stead, even your stepsister. You may not ultimately be appointed, but by forcing the estate into probate administration you will be able to learn about the exact nature of your father’s assets and possibly be able to retrieve items distributed without authority. You certainly want to alert the judge to this problem of Dad’s tools being given away and provide a list of the missing items. Hopefully, you can work out a private agreement on distribution of those items dear to your heart. The probate code favors in-kind distribution.
YOU NEED TO TALK WITH AND HIRE AN ATTORNEY because you mentioned a predeceased sibling who might have had children that would share an inheritance with you. These are court proceedings and the probate judge and her staff cannot give you legal advice or make appropriate motions for relief on your behalf.
Sadly, often individuals at odds with one another trace the root of the argument back to how things changed when Dad married again and how a stepparent favored their own child, disregarding the father’s biological children.
Blended families in conflict following the death of a loved one are common. It may seem petty and foolish from a distance, but the hurt feelings are real and both law and custom honors the expectation of an inheritance from our parents no matter how modest. Things like Grandpa’s gun passed down through the generations along with a story of valor in either providing for a family by hunting or serving his country during time of war symbolize courage and values proudly pass from one generation to another. A piece of jewelry once a birthday gift help adult children feel the kind of romance and marital love that last for time and all eternity. And Mother’s china preserves precious memories of togetherness at the holidays. We respect the rule of law, but kindness matters in most probate situations.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.
