Discharged Probate Case

What is the name of your state? South Carolina

My girlfriend's mother was listed on her deceased husband's will to inherit 35% of his estate. Her husband died about one year ago and left a will with his son listed as the administrator. My girlfriend's mother is a Thai national, and all of her inquiries to the son have gone unanswered. Once he told her that he didn't know anything about the case! My girlfriend's mother has shown me one of her late husband's fidelity funds account which clearly shows transactions and withdrawals well after his death of about $45,000.

I subsequently requested the disposition of the probate case from the probate court on her behalf and found out that the case was discharged about four months ago due to there being no assets!

Does anyone know if a probate case can be reopened if it can be proven that the deceased did in fact have assets that the administrator knew about or withdrew prior to filing the probate case?

Did the son also have power of attorney? If he used that document to claim the funds after the death (even though POA expires at the moment of death), he had no authority to do so.

Was the son's name set up on the fidelity funds account as a joint co-owner? If so, then the money became his under the concept of right of survivorship after his father died. You would think her husband would have put his wife's name on the account instead. She should also ask Fidelity to send her a copy of the check and/or ask if it was made out to the estate or to the son's name personally. Normally they should have required him to produce letters testamentary to prove he was claiming money for the estate.

Was her husband suffering from a disease or taking medications that would have affected his mental competency at the time he signed his will?

What other assets were in his estate?

She truly needs to be consulting a probate attorney to find out what happened here and whether she should be charging the son with abuse of POA or theft or something else or whether he actually acquired title to the assets legally through the POA.

DANDY DON IN OKLAHOMA ([email protected])

Dan,
These are the same questions that I had when I found out about this, in fact, I sent a letter requesting the disposition of funds to the financial institution on behalf of my girlfriend's mother and they sent a letter back telling her that they couldn't release any information since their was an administrator taking care of this case. I also reviewed the probate application and it showed that the estimated estate value was about $200,000, but the case was shown to be discharged because the administrator listed assets at $0.00!

The husband was of sound mind when he wrote the will and he resided with his wife until his death. He also indicated in the will that $35,000 was to be given to his daughter, $1,000 given to each of his 3 grandkids, 35% of his estate to his wife, and the remainder was to go to the son, who was also listed as the administrator.

Do you know if the case can be reopened once it has been discharged by the probate judge? Shouldn't my girlfriend's mother be entitled to know if the other listed heirs received anything? My girlfriend's mother also said that he owned some land before he died, but when she asked the son about this, he simply replied that his father transferred all of his land to him before he died...

If you have not done so, you need to look at the entire probate file to get an overview of all documents in the file.

Why can't she contact the other people/heirs herself to inquire if they got anything?

Look up her husband's name and/or the son's name on the county land records file (most likely available on computer by doing an online search for that county) and see if there is any mention of land in either party's name.

Administrator's actions are suspicious here, but the only way you are going to find out what happened is to discuss it with an attorney. Probate is not likely to be reopened but if she finds evidence of other assets or evidence of criminal activity she can go to the police to file charges or file a civil lawsuit, but as of right now you all don't know what has actually happened. If she filed (or hired an attorney) to file to open up probate again, at least it would give her or her attorney power as administrator to order copies of his bank account statements and power to ask at the financial institutions for a record of activity. Even as a surviving spouse (no letters testamentary needed), she has the right to request copies of his state and federal tax returns for the 2-3 last years of his life, and if the son submitted one, perhaps even the estate tax return for the last year her husband was alive (this would be a good place to start because at least it would reveal the sources of his income/assets).

And you still have not answered the question of whether he had power of attorney and since he won't answer it if asked, she will need to consult an attorney to find out what, if anything, her next step should be. At least ask an attorney if South Carolina has laws on the books concerning elderly financial abuse and abuse of POA. Can she afford to retain an attorney to represent her?

How long was she married to this man?

Can she think of names of any relatives or friends of the man who would have been asked to witness the will who can confirm that the will was done? Would she know the name of the attorney who may have helped him draft it?

Son may be deliberately withholding it to prevent filing it for probate. She will also need to discuss with her attorney if she can open up probate and ask judge to ask the son to produce it for court.

DANDY DON IN OKLAHOMA ([email protected])