If your father is alive, your sister is not his personal representative. A personal representative in SC is someone who is appointed to represent the estate of a deceased person.

A person appointed to act in a power of attorney is called an agent or an attorney-in-fact. The person giving the power of attorney is called the principal.

Power of attorney abuse is a serious problem. While I have not seen your father’s power of attorney, most powers of attorney grant the agent the authority to access bank accounts, and allow for the exercise of this power even while the principal is fully competent. While your father is competent, he may be able to resist the attempts by your sister to access the account. But there may come a time when he cannot.

An agent under a power of attorney must always act in the best interests of the principal.

Please keep in mind that this comment does not constitute legal advice, but is rather a general response to a general inquiry. If you have a legal problem, you should consult a lawyer and not rely on this blog. Comments on this blog are not a substitute for a consultation with a lawyer.

Thank you for your comment. Two things:

1. The SC Probate Code says that personal representatives who are served with a Summons and Complaint seeking their removal must not do any act affecting the estate except to account, to correct maladministration, or to preserve the estate.

2. The Probate Code also allows an application to be made to the Probate Court for a temporary order restraining the Personal Representative from “performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person.”

Please keep in mind that this comment does not constitute legal advice, but is rather a general response to a general inquiry. If you have a legal problem, you should contact a lawyer and not rely on this blog.

Thanks, Kevin

In responding, I assume you are contacting me from South Carolina and that the other heir is in the same degree of relationship as you are with the person whose estate you want to represent.

If the above is correct, each of the heirs are equally entitled to serve as personal representative. Absent an agreement by the heirs as to who will serve, you will have to proceed by a formal proceeding, with notice to the other heir, and a hearing to be held in front of the probate judge to decide who will be most qualified to serve.

At this point, you should start thinking about having an attorney represent you. An attorney can explain the process to you and the other heirs, possibly clear up some misunderstandings or misconceptions, and work out an agreement on who will serve as personal representative. There is also a procedure available where both heirs can serve as personal representative, which can reduce the paperwork required to wind up the estate.

Absent an agreement by the heirs otherwise, the Probate Court may require a bond to be filed, which is another hurdle to deal with and will result in increased expenses. Furthermore, to obtain a bond requires a credit worthy and trust worthy individual, the bonding companies will check into personal backgrounds.

Now the disclaimer. I have done my best to generally answer your question. But it is impossible to provide comprehensive legal advice over the internet. The facts you have given me were limited, and I made several assumptions in trying to answer your question. I strongly advise you to consult with an attorney to help you. No attorney-client relationship arises from this communication.