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My father-in-law who is 94 just received an inheritance from a daughter from his first marriage who died without a will.

Tampa, FL |

The other children from that marriage contested his inheriting the assets and had already liquidate about half of her assets. They settled the matter and with their keeping the portion they received and he has several accounts in California where his daughter lived. He lives in Florida with his wife who is 86. My wife will be inheriting the funds upon her mother's demise. We are concerned because my father-in-law recently had a stroke and has been going in and out of lucidity. She is concerned that the original siblings could take the funds if he is deemed incompetant. His current will leaves everything to her. Will she have access to the funds if he is deemed incompetant until he dies. Thank you,

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Attorney answers 3


It sounds like your FIL needs to sit down with an estate planning attorney to go over his own estate plan. From your description, the fact that he got the funds through a settlement has no effect. If the prior case is settled and he has received the funds, the funds are his, period. At this point, you have to make sure that your FIL has proper valid powers of attorney and perhaps a revocable living trust so that assets can be used for his benefit while he is alive and if and when he is incapacitated. If he already lacks capacity and doesn't have proper estate planning, it is very possible he will need a guardian appointed and his wife may not be the right person due to advanced age. See a lawyer about this right away.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website:



Thanks Steven, that was helpful. Will do.


As usual, Mr. Zelinger has offered stellar advice, and I agree with him. A durable POA is likely to completely resolve this situation. If your FIL lacks capacity to sign a POA, then your may be stuck going to probate to obtain guardianship/conservatorship for him. I would have him meet with an attorney during one of his lucid intervals, to make sure all his estate planning is in order.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!



Thanks James, we're on it. Appreciate your advice.

James P. Frederick

James P. Frederick


You are very welcome. Best wishes for a successful outcome.


The other attorney have offered sound advice. Take your wife's mother and father-in-law to an estate attorney when he is lucid to complete their estate plan. Without the proper estate documents in place, you may have to seek a guardianship to ensure proper care of your father-in-law and to protect his assets, which could be costly.

Answer does not constitute legal advice. Please call (727) 471-0039 or contact me at, if you would like to discuss your Florida legal matter further. This answer is provided for informational and/or educational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Adam is a Florida Attorney practicing in areas of Estate Planning, Elder Law, Trusts, Probate, Guardianship, and Business Law. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

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