which will?

[bigh3434]

What is the name of your state (only U.S. law)? NC & SC

My mother(mother of 4 kids and wife of a husband) had a will in 1999, naming husband as executor at W. county, SC. Since then her husband passed and 1 child also. In 2007, mother drew up another will, leaving a granddaughter executor & POA. This will was drawn up as a draft and signed by my mother, until mothers attorney could mail her the original, because that same day of the draft, my mother was leaving to live with said grandaughter in NC. Mother recieved the new original 2007 will in the mail, which she signed, but did not have it witnessed, and did not mail it back to her attorney in SC. In 2008, mother moved back to SC to live with my sister in C. county, SC. Mother made my sister POA, and as far as we know, did not make another will since 2007, as far as me and a brother know, because the only will produced to my mother's funeral director by my sister, was the will drawn up in 1999. Even though my mother has stated numerous times til death, and to many witness's, that all assets are to be divided equally among the 3 remaining children. Both wills(1999 & 2007) supposedly states this also. My mothers granddaughter in NC(my sister's daughter) and my sister can't stand each other, and grandaughter says she doesn't want anything to do with the excecutor title she was given in 2007. I'm sorry but my sister has turned dictator on all of us and I had to flee in my mothers, still financed car, to louisiana, for fear of not being able to get home. My sister controls all my mother's cash(approx. $10,000), through POA, and after my mother's death, told me I could walk home as far as she is concerned. I know POA is no longer valid after my mothers death, but she doesn't think so. My question(s) are, Is the will in 2007, drafted in W. county, SC and signed by my mother in NC, but not signed by witness's and naming grandaughter as executor, the valid will, or will the 1999 will be the valid one? Will probate be held at her (mothers)last residence in C. county, SC, or in her lifelong residence of W. county, SC? Also mothers assets are small, the $10,000 cash(if my sister hasn't spent it all by now) and about the same(equity) in mothers car, are all that's left, besides furnishings. THANK YOU!

[anteater]

Since South Carolina requires signature "...by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will...," I would say that the 1999 will is the one that would be admitted to probate.

I would say that probate should be opened in "C. county" since that was her last place of residence. But, South Carolina law is the same in either county.

If sister does not believe that her power as agent has ended:

SECTION 62-5-502. Other powers of attorney not revoked until notice of death or disability.

(a) The death, disability, or incompetence of any principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the attorney-in-fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives.

(b) An affidavit, executed by the attorney-in-fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

It would be rather hard for sister to argue that she was not aware of the principal's death.

[bigh3434]

Thank you, anteater. My sister and now my brother (who's from denver), is still staying at my sister's, which seems strange unless he's waiting for mom's cash assets. Both have stopped communicating with me all of a sudden. IF the 1999 will is the valid will(which the executor is now deceased), who and when, does one open probate, and is it legal for sister and brother to disperse mother's cash assets as they see fit? What do I do with a $30,000 valued vehicle, that has a pay off of $18,000, that belonged to my mother, and is financed in her name only? Should I contact mother's attorney in W. county, SC and ask him to open probate? Being here in La. and no contact with my sister and brother in SC, I feel the greed is festering there while I'm away, legal or non-legal. Do I have any rights? Regardless of the asset dispersements by the other two, its a sad day when money is valued over family relations, especially over such a small estate. AGAIN, THANKS.

[Kiawah]

Get the car back to your mothers estate, before you end up arrested.

[anteater]

IF the 1999 will is the valid will(which the executor is now deceased), who and when, does one open probate...

While the nominated executor is usually the one to apply to the court to open probate, that does not prevent any interested party from doing so. Even if the 2007 will, that nominates the granddaughter, is valid, that does not mean that another interested party cannot apply to open probate.

...and is it legal for sister and brother to disperse mother's cash assets as they see fit?

No, it is not legal unless one of them has been appointed by the court to administer the estate. Neither has legal authority to do so. Which doesn't mean that sister with the POA can't do it if the financial institutions don't know that mother has passed away and that the POA is no longer valid.

Should I contact mother's attorney in W. county, SC and ask him to open probate?

Sure. Tell him that you want to apply to administer the estate. That should stir the pot.

[bigh3434]

THANKS ANTEATER!

And KIAWAH, it isn't a problem to return the vehicle, but who is the estate or guardian if probate has'nt been opened? The finance company has been contacted by me to continue payments out of my pocket, and there reply was "don't worry about it til it goes to probate". I don't have a right to use it, less or more than the other 2 siblings, til probate time?

[Kiawah]

Okay,

Good luck with:
- the lien holder, when they aren't getting their monthly loan payments
- the insurance company, when they aren't getting their monthly insurance payments and find out the owner is deceased and others are driving it, even out of state in a different insurance zone, or there is an accident (no matter who's fault)
- DMV, if it comes up for inspection, renewal, or property taxes.
- the cost of any repairs or maintenance

You have opened yourself up to trouble a number of different ways, I'd get it back as soon as possible if it was me. What you hoped to accomplish by taking the vehicle and fleeing the state, driving it to Louisiana, is beyond me. There is no upside, only negatives can come of it.

You've got many multiple months in the best of situations to get probate resolved, probably a year with the contention, multiple wills, and fractured family issues.

[bigh3434]

8 weeks before my mothers death, she contacted two out of state sons(me & brother) and told us that she had cancer,and would like for us to spend the last few weeks with her at her expense,as she had the money left from my father's death 3 years ago, because my brother and I didn't bother to share in the will proceeds from fathers death. She stated all expenses would be paid there and back as my brother is disabled and I also myself from an accident. My sister was given stern verbal instructions from mother to make sure your brothers get back home at my(mothers) expense, after her death. This was stated, because my mother's checking account was shared with my sister, and my sister and I don't get along. 12 HOURS after mother's death, my sister told me, "as far as I'm concerned, you can walk home," and canceled my mother's credit card as being stolen.We each had a credit card given to all 3 siblings to use for any expenses while we were there. Sister canceled only mine, not the other two. I was in mothers vehicle with all my belongings, on the way to help make arrangments for incoming relatives, when the "dictator" stated all this to me by phone as I was driving mothers car to make arrangements. With no money to get home to my family except by foot, I had to make a choice and was assisted financially for gas by an uncle. Right or wrong, this is the lengthy answer to your question, "Why would you even do this?" Said vehicle is financed and insured with (uninsured motorist protection) through the same company, STATE FARM. The agent in charge of this account is the one who told me to not worry about it til it goes to probate. This comment was made to me after I voluntered to make the payments on the car note and insurance. I understand and appreciate your time and advice, but I guess I'm asking, in the eyes of a probate or any other court, do I or any other of the 2 siblings have the right to drive the vehicle(with STATE FARMS PERMISSION) in SC, or any other state till probate time?

[anteater]

do I or any other of the 2 siblings have the right to drive the vehicle(with STATE FARMS PERMISSION) in SC, or any other state till probate time?

No. State Farm can not give legal advice.

But you've already gone and done it. So, be careful.

ETA: And, depending upon what you mean by "...checking account was shared with my sister...", the checking account funds may legally belong to your sister now rather than being a probate asset.

[Kiawah]

Canceling the credit card after you have been using it and reporting it as stolen, is illegal. Perhaps this now explains the need to drive all of your belongings out of state.

[justalayman]

if you know what bank any accounts are in, call them and inform them of your mothers death. That will put a stop to sis using the POA to control the funds.

any credit card should also be notified immediately for the same reason.