Legal Question in Wills and Trusts in South Carolina

Re: Dictates of the Dead

Virginia is not one of the nine community property states but rather belongs to the majority of so-called common law title states that allow spouses to more easily establish and maintain separate ownership to items of personal as well as in some instances real property during the tenure of their marriage.

It may be, however, that even in a common law title state such as Virginia, the surviving spouse in the situation which you've described might have a claim against the items which the deceased spouse has directed in his will to be sold and procceds distributed to others. If the surviving spouse contributed to the purchase of these items they in fact could be marital property even under applicable Virginia law and, therefore, not subject to the directive of the deceased spouse's will.

Your friend, therefore, should have the will evaluated along with the facts relevant to the purchse of the items which the will has directed to be sold by a Virginia lawyer knowledgeable in the areas of probate, wills, as well as domestic relations law to determine what in fact she is required to do in regard to the will's directives.

If your friend cannot afford to retain such counsel on her own, it's possible that her local

legal services office might be able to make one available at minimal cost for a consultation to clarify her responsibilities under this particular will.

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Re: Dictates of the Dead

Your question is not precise on which State is involved. You mention that it applies to SC law. However, the rest of your question makes it fairly clear that the husband died as a resident of Virginia. It does not matter where they were married. The only question is in what State he resided as a citizen upon his death. Sometimes that can be tricky. But it sounds from your question that Virginia law controls.

To add a little to my colleague's comment, a person's will can give property to ANYONE at all. A will can direct that the executor pick a name at random out of the phone book.

However, no one can give property they don't own. If your friend is the co-owner of the car, her husband's will cannot give away what the wife owns. Her husband's will can only give what the husband owns. She should check how the title in the car is written. Whose name is on the title? Who made the payments in the car? Were their finances co-mingled in a joint account and payments made out of the joint account?

The tricky thing here is that if the hubsand owned 1/2 of the car, he might be able to give his 1/2 by his will to someone other than his current wife, UNLESS it is "marital property" as my colleague describes. This is a very unusual situation because it is a rather strange situation that does not come up very often.

You write that the will "seems" to stipulate this. Because this is such an unusual situation, it would have to be very clear in the will, not maybe.

Also, who is the executor? Presumably, your friend is the executor. While she has a responsibilty to faithfully follow the will, and that is legally enforceable by any beneficiary, if the will is unclear, she also has to interpret it in the way that makes the most sense. So if it "seems" to stipulate this, she needs to study it very carefully. If one provision of a will is unclear, she should look to the entire pattern of the will and try to glean the overall intent and pattern.

My colleague mentions "legal services" which is one of the most ignored and overlooked services available to people who don't have much money. Call or visit your local court and ASK them, and they will be able to refer you to FREE LEGAL AID which is available to those who can document very low income.