My father just passed away and my brother is withholding the will from me.
Estate Planning Attorney
In South Carolina, a will must be filed with the probate court within 30 days of death or potentially face a misdemeanor.
SC Code SECTION 62-2-901. Delivery of will to judge of probate; filing.
Every executor, devisee, legatee, trustee, guardian, attorney, or other person having in his possession, custody, or control any last will and testament, including any codicil or codicils thereto, of any person dying must within thirty days after notice or knowledge of the death of the testator deliver such last will and testament, including any codicil or codicils thereto, to the judge of the probate court having jurisdiction to admit the same to probate and such judge of probate shall file the same in his court and if proceedings for the probate are not begun within thirty days he must publish a notice of such delivery and filing in one of the newspapers in his county for fifteen days. Any executor, devisee, legatee, guardian, attorney, or other person who fails to deliver to the judge of the probate court having jurisdiction to admit it to probate any last will and testament, including any codicil or codicils thereto, upon conviction must be punished as for a misdemeanor. Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver to the judge of the probate court having jurisdiction to admit it to probate any last will and testament, including any codicil or codicils thereto, for the purpose and with the intent to prevent the institution of proceedings for its probate shall, upon conviction thereof, be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both, in the discretion of the court.
Once the will is filed with the probate court it is public record and anyone can access it.
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 . Evan Guthrie is the founder of Law Student Land http://www.lawstudentland.com . News Law Life http://newslawlife.ekglaw.com Estate Planning http://estateplanning.ekglaw.com Evan Guthrie Law Firm 164 Market Street Suite 362 Charleston SC 29401 843-926-3813
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If you know who the lawyer is who drafted the Will, I would go to the lawyer to get a copy, (or the original, if the lawyer has that). You would then go to court with the copy (or original) and ask the judge to admit it. You can also indicate that your brother is in possession of the original (if that is the case), and ask that the court compel him to produce it.
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As Attorney Frederick points out, there are several ways you can get the Will to be filed in the court. In many states withholding the Will, or acting as executor without first being appointed by the court, is a criminal act. You need to visit with a local probate attorney.