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Can you sue a family member in a civil case (the PR of the will) for misapproiation of funds to the estate?

Goose Creek, SC |

My sister is the PR of my dad's estate. We are estranged and don't really speak at all. She hired her brother in law, who I have never met, to fix up his house, his only asset. When I received the HUD statement I noticed that $70,000 had been paid to him for repairs. The house sold for $145k. I requested a hearing in which I asked for the receipts for the work that had been done. My sister says that there are no receipts at all but that she could get her brother in law to write an affadavit. I am in disbelief that she has no receipts and know that she didn't spend 70K to fix the house. I have, since the hearing, found out that he wasn't even licensed is SC to do the work and that no permits were obtained for the work. If I pursure this further should it be probate court or civil c

The house was originally valued at $130k and after the 70K of renovations sold for $145k and the PR (my sister) is wanting to give me only 17K. There were no bids from other contractors and she is adamant that there aren't any receipts or a paper trail to follow. She said in court at the hearing I requested that her brother in law paid for everything out of his own money and was reimbursed at closing. She says she didn't want receipts or ask for receipts. i have no money for an attorney and am trying to do this on my own so I really do appreciate the replies.

Attorney Answers 5


  1. Best answer

    Your sister as executor is charged with the duty to protect and preserve the assets of the estate in order to ensure that the heirs receive their rightful share. Based upon the information you give, the executor exercised self-dealing, which means she spent estate money and would personally benefit from the expenditure. In one of the states where I'm licensed, a trustee did the same thing and her husband, a local judge, was unseated and disbarred for the actions of his wife (he knew, of course, what she was doing). This is a serious matter.

    Now, offering a different perspective: What was the house worth and what would it have sold for without the work being performed? Did the $70,000 expenditure increase the value of the house by at least that much? If, for example, the home would have only sold for $50,000 before, then you would have received $25,000. Now, you will receive $32,000 -- not a huge increase; yet your sister gets the $32000 PLUS the $70,000 to her husband.

    Also, the fact that he isn't licensed also impacts your sister's poor decision as personal representative.

    Based upon these facts, it appears that your sister may have breached her fiduciary duty to the estate. If she did, and if the judge determines that her actions were wrongful, then the court has the option to surcharge her (meaning, charge her) as executor, for those repair costs, and make her fork up $70,000 to be repaid back into the estate. The court won't require your brother-in-law to refund the money necessarily, unless the court determined that the 2 of them, acting together, perpetrated a fraud upon the court and upon the estate.

    You need to consult with an attorney experienced in contested probate litigation.

    In response to your question, this would typically be brought in the probate court, not civil court, and you need to do it right away before the actions of the executor are approved and the probate is closed. If it's closed, it could be too late to complain.


  2. Interesting question. I think that the probate court would have jurisdiction, because you would be trying to recover money for the estate. The PR would have a conflict of interest, because she is the person that has the right to pursue such a claim, but would likely refuse to do so. Your share of this would appear to be $35k. The difficulty will be proving the value of the repairs as well as the increase in the value that they resulted in. Of course, if the builder was not licensed, and he had to be, then he may not be able to charge for his services. I think you need to take this to a probate litigation attorney to help you sort out the best way to proceed.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  3. Pursue this in the probate court.
    You will need a probate litigation
    attorney to assist you.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  4. You need to contact a probate litigator as soon as possible.

    Mr. Twombley is licensed to practice law in South Carolina and Georgia. His phone number is 843-982-0100, his email address is Twombley@twlawfirm.com and his website is www.twlawfirm.com.


  5. Yes. In South Carolina, the personal representative of an estate is responsible for proper management of estate assets in most cases. Contact an estate litigation attorney to evaluate your rights and options.

    Evan Guthrie Law Firm is licensed to practice law throughout the state of South Carolina. The Evan Guthrie Law Firm practices in the areas of estate planning probate wills living trust special needs trusts personal injury accident and divorce and family law and entertainment law. For further information visit his website at http://www.ekglaw.com . Yelp http://www.yelp.com/biz/evan-guthrie-law-firm-charleston Behance http://www.behance.net/ekglaw After College http://www.aftercollege.com/company/evan-guthrie-law-firm/more-about-us/ Evan Guthrie Law Firm 164 Market Street Suite 362 Charleston SC 29401 843-926-3813

    This answer is for informational purposes only. This answer does not constitute legal advice, create an attorney-client relationship, or constitute attorney advertising. Evan Guthrie is licensed to practice law throughout the state of South Carolina. For further information visit his website at www.ekglaw.com <ekglaw.com>.

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