My 93-year-old father has dementia. He married his second wife, who is 91, four years ago. He did not make a last will and testament, and cannot legally make one now because of his dementia. He is not expected to live much longer because of heart problems. My sister and I are concerned about what will happen to his estate after he dies.
If he passes away, how much of a right does she have over his property and money, given that they have only been married four years? She says she is in charge of everything and we have no rights to anything. Is this true? She has included her friends, not us, in helping her with decisions made about Dad. I’m lost and don’t know what to do.
Marcia M. in South Carolina
If you believe your stepmother is not acting in your father’s best interests, you should seek legal advice. It does not appear that there is any financial or elder abuse happening here — at least from what you say in your letter — so you may wish to wait until your father passes away to take action. In that case, you could contest your stepmother as the administrator of your father’s estate.
The probate court appoints an administrator, usually the deceased’s spouse or his/her children. You could petition the court to appoint you or your sister, or an independent third party. In most states, you have a limited amount of time to act — typically, 30 days — and it must be done in writing. You would need to provide just cause: dishonesty, incapacity. Personality clashes don’t count.
In South Carolina, the estate is divided between the spouse and surviving children if there is no will. Nosal & Jeter, a law firm in Fort Mill, S.C., says intestate laws don’t apply to life-insurance proceeds; funds in an IRA, 401(k) or any other retirement account; or property they own together or property to which your stepmother has the right of survivorship.
Ultimately, your stepmother may be left with fewer assets than she anticipates. I hope you can resolve this situation and ensure that your father is comfortable during the time he has left.
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