My father in law did not include my mother in law in his trust beneficiaries, does she have any legal rights from the trust proceeds?

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My father in law did not include my mother in law in his trust beneficiaries, does she have any legal rights from the trust proceeds?

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Our mother in law is my husband’s step mother. She has 2 kids from her previous husband. We all live in Florida and our parents said that they have an existing pre-nuptial agreement but we can’t find any document. Her 2 kids seem to be very eager to get everything that they could take especially now that their mother is sick with Alzheimer’s and they now took control over her finances. Thank you.

Elder Law Estate Planning Financial Planning

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Thank you all.

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I would be most concerened about the joint account with the POA name on it as well. This account receives income for living expenses. I would stop putting any more funds there and as POA I'd pay bills from dad's name only account. You can continue to pay some of MIL's, but I would not trust her kids who sound like they don't have a real guardianship order (Maybe a POA, but not a court ordered guardianship- it took us a month to get a court date). As long as dad has not been declared incompetent, he can go to a bank or broker and open a new account and have the POA sign paperwork too. This would protect his funds which he can still use to pay his wife's bills if he wants.

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Thank you so much.

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In Florida the spouse automatically inherits any jointly owned property, including bank accts ect. They are also entitled to approximately 1/3 of any assets not owned jointly. This overrides a will or pre-nup.

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Oh, that sucks! The prenup doesn’t matter at all? OMG, I have to tell them. Thank you so much!

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It seems to me that simply getting copies of documents the attorney has already drawn up shouldn't cost much if anything. You aren't asking them to draw up documents just get copies of the ones already paid for which they should have on file (probably stored electronically and simple to produce). That said prenups are usually drawn up in the event the marriage dissolves not death or health incapasitation so beyond backing up what you say their wishes and intentions have always been I'm not sure it stops MIL's kids n their tracks. It does sound like they, in-laws, really did try to set things up and be clear about their intentions and wishes so they may have other documents that spell all of this out too. I would encourage you to contact the attorney who drew all of this stuff, prenup, will, trust, medical directives up and ask how much it would cost to get copies of all of it from them. Sounds like your husband has been given all the authority to get it all and that would also give you a better idea if MIL gave any power to one of her kids or not prior to guardianship if they really have all of those legal ducks in order. That isn't such an easy or cheap thing to do so it may be that they have simply started the process or been appointed temporary guardianship while the courts figure out whats really going on in which case you husband as son and legal representative has every right to make sure financial things are clear and separate the way intended. If indeed the process is still working its way through courts I think your husband can file something as an interested party and make sure he is kept informed by the court. Maybe it's different with guardianship and competency hearings but I know for many court proceedings this is the case.

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Thank you, you’ve been very helpful! Thanks for being so patient! ☺️👍🏼

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You say at the beginning of their separation. Where they not living as husband and wife when she got sick or are you referring to her being placed in a facility for care?
If they decided, that sounds like not living as husband and wife and not getting a divorce.

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FIL and MIL have agreed on the separation of their properties and assets prior to their marriage. They even said that they have a prenuptial agreement that we can't find in FIL’s files. They just want the arrangement that way because FIL have 2 kids and MIL have 2 kids of her own, too. They both don't want to have any problems in the future concerning their estates. But now that MIL’s kids have declared her incompetent and took over all her affairs, her kids are going beyond their boundaries even getting into FIL’s affairs. That's when they found out that FIL’s personal account has their mom’s name on it and they would most likely run after that too because they even tried getting the car under FIL and MIL’s name. Good thing FIL is still sane that he refused to have his car taken by MIL’s kids.

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If your FIL is able to give permission for your husband to make changes then I would open a new account that doesn't have MILs name. Move all the deposits there and then the step sibs wouldn't be able to touch it.

If they are trying to take property then I really recommend spending the money to see the attorney to ensure that your FIL is protected. As annoying as it is for him to have to spend a few hundred dollars isn't that better than many thousands trying to fight their actions? Besides, once the items or money are gone it is harder to recover them, better to stop it before it gets taken.

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Thank you so much.

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Mb, from my understanding guardianship is only granted through a legal process, same for being declared incompetent.

Have you seen these documents?

Ask to see them or go to the courts, this would be public records.

If it is legal then they do need access to her financial information, they have to report to the court.
If it is just some paper, I don't know how legal it is, however, she still needs to be cared for and your FIL set up an account with her name on it, leads me to think that he fully intended to pay for her care. He is her husband and that is what real men do, they take care of their wives.

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FIL and MIL have agreed from the beginning their separation of properties including money, expenses, etc. MIL’s kids were able to control all her affairs including her ALF arrangements. MIL is lucky to have money and they have a family lawyer. Who knows how they’re able to have it legally that fast? Not anyone from our party and not even my FIL has demanded to see those documents. What my husband is worried now is when MIL’s kids go after my FIL’s bank accounts where he get funds for his living expenses. MIL’s kids even tried to get their car. FIL just refused. My husband is safekeeping the car now.

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What exactly do you mean that they had the situation taken care of immediately upon FIL becoming ill and declaring her an incompetent?

Who declared her incompetent? That is not something that just anyone can do.

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As soon as my FIL got very ill, immediately, my MIL’s 2 kids took her somewhere to sign various documents. We later on learned that those documents were for: SPA/Guardianship. A few days later, another document to declare her incompetent. They have been working on it since my FIL was confined in the hospital ICU. MIL didn't want her kids to meddle on her personal and mostly her financial affairs but she is powerless now.

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In Florida, like most states, a widow(er) is entitled to part of the estate, absent a prenup. Can you figure out what attorney FIL would have used and contact him or her for a copy of the prenup?

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That's the problem. Should my FIL have a copy of that prenup agreement on his file? He doesn't want us to contact his lawyer because it means he needs to pay him for whatever he might need or ask from him.

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Have one of the step siblings been appointed guardian of their mom? Because someone that has been declared legally incompetent would be assigned an advocate through the courts and they would have to report to the courts. I would work with them if this is the case, making it clear that they have to go through the POA to look at anything pertaining to dad.

Who is paying for MILs expenses? As long as they are both living both of their care should be coming out of the account that is in both of their names. It seems to me that it was probably set up for that purpose and that is why all 3 names are on it. I am thinking that your FIL trusted his son to take care of the woman he loved enough to make his wife.

As of right now, no one is entitled to anything out of the estate except your FIL and MIL.

I wish people would put their wishes in writing and update them when they have life changing events, like s marriage. It would make things soooooooo much easier for those that have to help.

Any meeting with an attorney to get things sorted out would be paid from your FILs money. But I think that the step siblings are trying to get information for the courts, it is part of their fudiciary responsibility if in fact she has been declared legally incompetent.

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They had that matter immediately taken cared of as soon as my FIL got ill and eventually declaring their mom an incompetent. My FIL and MIL have agreed on separate properties prior to their marriage and even mentioned about a prenuptial agreement that they have which we can't find in my FIL’s files. MIL is paying for all her expenses and so is FIL. The account where my FIL have MIL and my husband as co-owners is solely being funded by FIL’s investment, retirement proceeds, and social security. No contributions from MIL at all. But it seems like her kids are after that too including a vehicle under FIL and MIL’s names.

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You need to consult a FL estate attorney.

In TN, a husband's estate must provide for a widow regardless of any will. For example, a will may state that everything goes to the eldest son but state law requires an amount equal to one year of living expenses must be provided for the widow, even if the marriage occurred only hours before death. Widows from marriages of over 10 years are also entitled to a portion of the estate derived from the length of marriage. Trusts can be used to diminish the amount of the "estate"; however in TN the assets named in a pour over will are subject to the widow's portion.

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Thanks

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Typically a pour over will puts everything in the trust that has been purchased or acquired or missed in titling assets in the name of the trust. It can also address personal property that would not be in a trust, like jewelry, personal items etc.

If MIL is not named as a beneficiary in the trust and her children are not named then they have no rights to assets. No, no one that is not specifically named as a beneficiary is entitled to any of the trust assets. Trusts are created to keep things private, unless you are a named beneficiary you aren't even entitled to see the documents.

What does the trust say about her finances? Could they be dealing with accounts that were intentionally created as her inheritance, ie a savings account in both names that is not part of the trust.

Is the step family involved with her since her husband died?

If they are taking items that belong to the trust they can be prosecuted. The greed of people is just sickening.

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Exactly. The trust was created even before my father in law married her. They’ve been married for at least 15 years now. Btw, FIL is still alive but terminally ill and under hospice care and as I’ve mentioned, MIL is also ill and was declared incompetent by law by her 2 kids. They are going over everything including my FIL’s finances without my husband’s knowledge. He just found out about it when he went to his dad’s apartment and discovered that a folder with his dad’s financial affairs has been gone missing. When he confronted his step-mom’s kids, they told him that they’re just trying to determine what belongs to their mom and they got the approval of his dad to go through his documents when in fact, my husband’s dad is not sane, mentally and physically incapable to make any decisions because of his illness. My husband is his father’s atty-in-fact and the executor of his will and trust. He is also a co-owner/joint depositor in his father’s bank account together with his MIL. All his father’s expenses and needs are being taken from this bank account where deposits and credits are coming from his investments, retirement benefits and social security. He definitely did not appreciate what his step siblings are doing.

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If the trust is a living trust, and if there's what's known as a pour-over will, the will would identify beneficiaries, who would also be identified in the trust. And that's it. Anyone not identified does not inherit.

FIL has the right to provide for anyone he wants, and to exclude those he does not want to inherit. It's not the kids' choice whether they get an inheritance or not.

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Thank you. That’s what I understand too. We are hesitant to ask the lawyer because we are very concern about the fees.

My father in law did not include my mother in law in his trust beneficiaries, does she have any legal rights from the trust proceeds?

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