Estate Planning Mistakes To Steer Clear Of

estate planning mistakes to steer clear of

Any will or trust can be contested in court, but having an estate plan created by an experienced estate planning attorney is the only way to guarantee your wishes will be carried out as you want them to be. 

Creating a comprehensive estate plan, leaving no stone unturned, is the best way to protect your loved ones from the stressful scenarios that unfold when mistakes are made.

Are you unclear about what estate planning means? Read our post on The Essentials of Estate Planning… to learn more and begin thinking about your needs.

Avoid These Common Estate Planning Mistakes

These common estate planning pitfalls increase the risk that your estate will become chaotic after you die, especially if it has to go through probate or one of your heirs/beneficiaries contests it.

Here are some of the most common estate planning errors that tie things up in court, or create significant family stress or drama.

Believing the most common estate planning myths

As Bay Area estate planning lawyers, we hear people share the myths they’ve believed daily. Some of the most common estate planning myths include:

  • You don’t need an estate plan unless you’re rich.
  • They’re a waste of time and money because the family can contest it anyway (families may contest them, but the battle is already lost to them if you have a solid, updated estate plan). 
  • My family would never contest my verbal wishes. 
  • You can use free online forms for a DIY estate plan for way cheaper.
  • We already created one 15 years ago, so we’re done.

Estate plans cover more than most people are aware of, and should be changed and amended as your lives – and the lives of heirs/beneficiaries – change over time.

Failing to establish guardians and other instructions for your children

By far, this is one of the most heartbreaking scenarios. Young couples often falling under the myth we stated above (estate planning is for the rich), make no legally sound plans for their children in the event of a worst-case scenario. Or, they mistakenly rely on another myth, “we’d never die together.” 

You owe it to your children to create solid guardianship plans outlining who should care for them in the event that you are incapacitated and then longer-term plans in the event of your death. Failure to do so can place children in unbearably painful scenarios as they grapple with the emotional reality of their parent(s) dying while also suffering the unknowns around where they’re going to go. 

If you have children, it’s essential that you establish legally protected guardianship plans to secure their future.

Not understanding intestate succession

If you care about who gets what, especially regarding heirs/beneficiaries outside of direct bloodlines, you want to have a complete estate plan in place.

If you do not have a will or trust in place, or your estate plan is outdated, the probate courts control the estate. Now, it’s up to your family to tackle a big, stressful job navigating the probate court. And, in most cases, the probate court will stick to pre-determined “intestate succession laws.” 

That term means they’ll distribute your assets in a set order of inheritance, which usually goes something like this:

Everything in the estate will go to whoever is next on that list, without any of the personalized division of properties, assets, and beloved possessions that you would have selected. This can dramatically impact blended families or people you consider family that aren’t represented in the family tree.

Not having an advanced directive in place

Did you know that your advanced medical directive is considered part of your estate plan? For many, creating an advanced directive is the first step in making their estate plans because it primes the pump for evaluating what happens next. As you complete that plan, you’ll also begin to think about what your preferences are for end-of-life care, and this stimulates the desire to ensure things are distributed the way you want them to be – not the way the courts would decide of that a family may bully each other into.

Failing to plan for incapacity

Another myth surrounding estate planning is that it’s all about what happens after you die. That’s not true. Your advanced medical directive is proof of that. Another part of a well-thought-out estate plan is thinking about what happens if you are incapacitated due to an accident, unexpected trauma, or acute medical event.

The advanced medical directive covers some of the questions included here. However, you may also want to consider things like guardianship for minors or adults, children with special needs, pet care, taking care of the house and daily business, etc.

Not updating an existing plan to reflect the present

Wills and trusts are considered living documents – or they should be. That’s why we recommend reviewing your estate plan once a year. It’s the best way to catch any changes that need to be made so they become part of the legal record.

Unless you die in a year or so after creating it, there’s a good chance your existing estate plan is outdated. 

  • People may have died.
  • Someone has gotten divorced.
  • New additions were born.
  • Properties or assets have since been sold or liquidated.
  • Etc.

Outdated estate plans are far more likely to be contested in court than current versions, and the courts are more likely to take them over into probate. 

Not hiring the right estate planning lawyer

Finally, when creating such essential documents, documents that affect the well-being of your family now (in terms of tax benefits) and the future, you need to hire a responsible attorney

We recommend meeting with a few different attorneys so you can get a feel for the options. Ultimately, you want to find an estate planning law firm that:

  • Makes you feel comfortable and informed.
  • Has a positive reputation in the community.
  • Implements software and other digital tools that make it easy for you to prepare what you need and remember to provide updates as needed.
  • Has a niche area of expertise that pertains to your situation (children with special needs, specific tax requirements, charitable trusts, etc.)

Schedule Your Consultation With Tseng Law Firm

Are you ready to get started and learn the basics of estate planning so you can avoid these and other common mistakes? Schedule your consultation with Tseng Law Firm and experience the sound peace of mind clients appreciate when their affairs are finally in order.