Must and estranged husband be involved in their deceased wife’s probate?

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Must and estranged husband be involved in their deceased wife’s probate?

My mother-in-law recently passed but left no Will that we can find. We attempted to start the probate process but was told we could not because she was still legally married. Her husband’s whereabouts are unknown; they had been estranged for about 37 years and my husband has no interest in locating him if he does not have to. My husband was her only child and he just wants to do what needs to be done. Can you tell us what would be the process of possibly doing the probate process without having to involve her estranged husband? Is getting an attorney the only way to get through this process?

Asked on September 12, 2014 under Estate Planning, South Carolina

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

I am so sorry for your loss.  Why were you told you could not start the process?  Because a spouse has priority for being appointed as the Personal Representative or because you tried to exclude her estranged husband entirely?  If they were not legally divorced then under the intestacy statute in South Carolina (the statute that rules if there is no Will), he and her son share equally.  So you might want to obtain an attorney here to help with the probate because you may have to publish notice to him, etc.  I might also suggest that you seek help locating him from a private investigator in locating him.  The court may want that. Good luck.


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