My parents had a rocky relationship while my brother and I were growing up. They had actually separated for seven years, but eventually got back together. I am the oldest and have a brother a few years younger than me. My dad was an abusive alcoholic with a gambling addiction, and we lost two houses due to his drinking and gambling.
My mother made me the executor of her will, and asked that my brother receive the porcelain, while I would receive her jewelry. The house, bank accounts and any insurance money were to be split equally among my dad, my brother and me.
The will was written in Maryland, but we have all moved to different homes in the same town in South Carolina over the past 15 years. My mother passed away two years ago and my dad claimed that he didn’t have an original copy of the will. He did not want my brother or me to go to the probate court with him. I thought it was because he was grieving, but it turns out he was just greedy.
“‘My dad recently refinanced the house, and he took all of the equity out of the house to support his gambling addiction and to leave us with nothing.’”
I have a copy of my mom’s will that my dad reluctantly shared with my brother and me, but I could not find the original will. My dad recently refinanced the house, and he took all of the equity out of the house to support his gambling addiction and to leave us with nothing. My brother said he has no interest in any part of my parents’ home because he feels like it would be nothing but debt.
My brother has a great job and a nice home and doesn’t need or care to have anything that was my mom’s except the porcelain, which he has already received from my dad. My dad did not want to give me all of my mom’s jewelry (not that there was much), but he kept her wedding rings and some of her nicer pieces. I can’t help but feel resentful. I have been a divorced single mom since my kids were babies, so it would be nice to have some pieces to pass down to my children.
Now my dad has said that he wants to take my mom’s name off of the house. In order to do that he needs an original copy of the will, and he said that he has been given the runaround by his contacts in Maryland and South Carolina. He claims this would give him a tax benefit. I feel heartbroken and powerless.
I went to the probate court in South Carolina, where I was told I could sign a form that my mother did not have a will and the property would be divided among my brother, my father and me. However, my brother does not want to sign it due to the possible debt attached to it. Besides, can anything be divided now that my dad has refinanced it? Is it legal for him to refinance the home knowing that it should have been divided among the three of us?
Do I have any recourse if I don’t have an original will?
Daughter of a Perpetually Selfish Cheapskate
Dear Daughter,
There is so much unknown here. First, some major caveats: The absence of a will complicates matters, as does the passage of time since your mother’s passing, in addition to your father refinancing the mortgage on the home. Your father’s unwillingness to acquiesce to your late mother’s wishes with regards to her jewelry has understandably left a mark on your family. Without a valid will for your mother, your father has made swift moves to take control of her estate.
Your mother’s last wishes are further complicated by intestate law in South Carolina, given that she died there and appeared not to leave behind a valid will and the kind of deed she had on her house. Was her name alone on the deed? Or did your parents own the house as joint tenants with survivorship rights, or as tenants in common with no survivorship rights? Even in the latter case, only your mother’s share would be divided.
If a person dies without a will in South Carolina, their spouse inherits half of their intestate property, and the descendants inherit everything else. But the question remains about the status of your mother’s home and/or your parents’ home. For joint tenants with the right of survivorship, both parties own the entire property together, and it passes automatically to the other party when one owner dies.
The fact that your mother passed away two years ago and your father has already refinanced the house may add more problems to your efforts to claim a share of your mother’s estate. In South Carolina, the statute of limitations for contesting an estate would be one year after your mother’s death or within eight months of informal probate proceedings, which is later, although there may be exceptions.
“The absence of a will complicates matters, as does the passage of time since your mother’s passing, in addition to your father refinancing the mortgage on the home. ”
The deed of your mother’s house should establish whether she and your father were (a) tenants in common or (b) joint tenants with survivorship rights. Tenancy in common does not necessarily have survivorship rights if none are specified in a will, and the owners could own different shares of the house (51% and 49%, for example), but the latter means that your father will own the house he shared with his wife outright.
Your story points to the importance of writing a will and filing it in the probate court. Mike J. Polk, an attorney at Belser & Belser in Columbia, S.C., who focuses on probate administration and litigation and estate planning, said if you can’t find an original will, the law in South Carolina assumes that the will was destroyed by the person who wrote the will — in this case, your mother. “However, this assumption can sometimes be rebutted,” he said.
He suggests one option: filing the equivalent of a lawsuit in probate court, called a “formal proceeding.” In your papers, you would serve the appropriate people — your father and anyone else listed in the will — and say that if no one objects, it should be admitted to probate. “If someone does object to the will, it will end up in litigation,” Polk added.
Even if you were successful, the payout would depend on how much actual equity remains on the house. In some counties, you can get basic information on deeds and mortgages online, Polk said. With an outstanding loan on the property, there is usually no personal liability for the heirs — your brother and yourself — if the original loan had gone into default and the house into foreclosure. If your father signed the original mortgage, and refinanced the loan, then he bears the responsibility for that.
An estate and probate attorney would best advise you on the next course of action, whether you have a strong enough case and, even if you did, whether it was worth pursuing given the amount of money left in your mother’s estate and the fact that she did die without a valid will. Be warned: Pursuing legal action at this point would create more family discord, and would also likely be a long and expensive process.
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