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Mitchell C. Payne

Mitchell Payne’s Answers

3 total

  • How can I make my uncle pay money that my granddad left me in his will?

    My granddad left me $15,000 when he died several years ago. I was under age at the time so he put my uncle in charge of making sure I got it. I'm now 20 years old and get only promises n excuses from my uncle.

    Mitchell’s Answer

    This is not nearly enough information to give a truly informative answer. However, if your grandfather's will left 15,000 in trust with your uncle for your benefit, the terms of the trust are important. When was the trust required to be paid out? Were there conditions on the payout? Etc. If such a trust exists, your uncle is a fiduciary and has an obligation to fulfill the terms of the trust. If he does not comply with the terms of the trust, you have a number of potential actions. For example, you could bring an action in the Probate Court to remove him as Trustee, or to compel him to perform under the terms of the Trust. If the money is missing, you can bring a court action against him for breach of fiduciary duty. The facts may even reveal additional legal actions you could bring.

    The first step is to acquire a copy of the will. If you do not have one, and your grandfather was a SC resident, you can obtain a copy of your grandfather's will from the Probate Court for the county of your grandfather's residence at the time of his death. If that was Spartanburg County, that would be the Spartanburg County Probate Court. You should then consult with an attorney who practices Probate Law. Do not wait. The time limit (statute of limitations) for you to bring a legal action against your uncle may already running. If you wait too long there is noting anyone can do to assist you.

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  • How can sons find out if their deceased mother's property is in probate.

    Their mother did not have a will.

    Mitchell’s Answer

    In South Carolina estates are handled by the Probate Court for the County of the Decedent's residence at the time of death. If your mother died a resident of Abbeville County, that would be the Abbeville County Probate Court. You can go to the Court and ask if the estate has been opened. If it has, you can obtain a copy of what is in the file and you can file a demand for notice of future filings. Under SC law, all wills must be turned over to the Probate Court within 30 days of a decedent's death. If your mother died without a will, there is no specific time limit for opening an estate, other than no estate may be opened more than 10 years after a decedent's death.

    If an estate was opened the Personal Representative of the estate had an obligation to provide written notification to all devisees and intestate heirs of the opening of the estate. This should have occurred shortly after the estate was opened.

    If no estate has been opened, any devisee under the will or intestate heir can petition to open the estate, and ask to be appointed Personal Representative. If more than thirty days has elapsed since the date of death, creditors can also petition to open the estate and be appointed Personal Representative.

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  • If I have power of attorney and guardianship for my grandmother is a conservatorship needed as well?

    We recently settled a lawsuit for my grandmother and the attorney is telling me that a conservatorship is also required. I have read some things that make me believe the conservatorship is not needed with the POA appointment. I just need a secon...

    Mitchell’s Answer

    It is very difficult to answer a question like this without all of the information and seeing the documents you have in place. As a general rule if you hold a properly executed General Durable Power of Attorney for your grandmother and she was competent at the time she signed it; a conservatorship should not be necessary. However, that is not universally the case. There are some things you cannot do with a Power of Attorney.

    For example if you are trying to create a trust to hold the assets of a disabled person so that he or she does not lose Medicaid benefits, you may not be able to accomplish that without an order from the Probate Court. The Probate Court may not grant such an order without appointing a Conservator.

    It is also possible the Judge who is approving the settlement is requiring a conservatorship be established. The holder of a general durable power of attorney is largely unsupervised in the management of assets; whereas a conservator must be bonded, is required to file an annual accounting with the Probate Court, and cannot make certain expenditures without Probate Court approval. Sometimes the presiding judge prefers continuing supervision of the settlement proceeds.

    Finally, do not forget who the attorney represents in this matter. He represents your grandmother, not you. Perhaps he feels it is in her best interest that management of the settlement proceeds be supervised by the Probate Court.

    This is not intended as legal advice, and does not establish an attorney-client relationship. If you have any questions about what your grandmother's attorney is telling you, you should hire separate legal counsel to advise you regarding your rights and duties as the holder of your grandmother's power of attorney. No one can properly advise you in this matter without knowing all relevant facts and reviewing relevant documents.

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