Estate Planning text concept written on wooden blocks

Common Pitfalls of Estate Planning

The Elder & Disability Law Firm, APC  Sept. 18, 2023

According to various surveys, fewer than 40 percent of Americans even have a last will and testament in place, and the others say they don’t have enough assets to bother or they’re waiting for the proper time, whatever that might be. Granted, no one likes contemplating the end of life, but you should make plans to care for your loved ones when you’re gone. 

Even among those who do create wills or trusts, they are prone to assume that once the document is created, all is taken care of and they can rest comfortably, knowing their loved ones will be taken care of. Life, like everything else, however, changes, and what you thought was ideal one day or one year may not be the next day or year. The same holds true for estate planning. Your plan needs to be reviewed and updated, ideally on an annual basis. 

On top of that, many of the legal instruments created for estate planning purposes may have problems that can slow or even prevent your assets from being properly distributed to your heirs and loved ones.  

In short, estate planning, especially if you do it on your own or by using an online service, can contain errors, lapses, imprecise wording, and other glitches that can lead to challenges in probate proceedings or in trust administration. Who you pick as your executor or trustee can also have a huge impact on how your estate plan is fulfilled or not fulfilled. 

If you’re looking to create an estate plan, or review what you have in place, in or around Redlands, California, contact the estate planning attorney at The Elder & Disability Law Firm, APC. Despite the firm’s name, clients of any age will find the firm’s services professional, personalized, and legally precise. The firm also serves clients in neighboring communities, including Riverside, Rancho Cucamonga, and the Palm Springs area. 

Common Pitfalls in Estate Planning

The most common pitfall in estate planning is to keep putting it off. The second most common is that, once you’ve created a will or trust, to just forget about it and not review what you’ve created to reflect changes in your life and circumstances, which should ideally be done annually. Other common pitfalls include, but certainly are not limited to: 

NOT PLANNING FOR ALL POSSIBILITIES: An estate plan is not just for the sake of your loved ones, but for you as well. This means that you must plan for your future. This could include creating a living will and an advance health care directive in the event you become incapacitated. These instruments will allow your named health care agent to express your medical treatment preferences to the medical team attending to you. (This is often referred to as a “do not resuscitate” directive, but that is not the only choice you can voice in your documents.) Another option, even if you create a living trust, is to give someone you trust a power of attorney to make financial decisions for you should you become incapacitated. 

NAMING THE WRONG TRUSTEE OR EXECUTOR: If you have a will, you must name a personal representative who will become the executor of your estate in probate. In a trust, you must name a successor trustee to take over after you’ve become incapacitated or pass away. The choice of these individuals is crucial.  

They should not only be an individual you trust implicitly, but they must also share your values and have the competence to carry out their duties. After you’ve named a personal representative or a successor trustee, you may realize that the person you chose is not the most qualified, or the person may through his or her actions reveal that your choice was wrong. Be prepared to replace whomever you’ve named. 

HAVING AN IMPRECISE DOCUMENT: A will or trust must contain precise legal language to avoid challenges and mistakes. It is not enough, for instance, to state that “I’d like to leave blah-blah-blah to so-and-so.” There are issues like “right of survivorship” and “right of representation” that can figure hugely in the wording of your will or trust. These are issues that you should rely on an experienced estate planning attorney to ensure that your dispositive clauses are clear and meet all legal standards. 

FORGETTING ABOUT FINAL ARRANGEMENTS: Your living will, or even your will or trust, should address how you wish to be taken care of upon your death. Any funeral, burial, cremation, and donation of organs should be addressed and specified as to your wishes. 

Make Informed Choices at Every Step

Despite the online and television ads touting how you can create your own will or trust by checking some boxes and filling in some blanks, there is no substitute for the hands-on advice of an attorney sitting with you as you develop your estate plan. There are options and choices that no online platform can address, nor can an online service provide personalized attention to what’s important in your life. 

If you need to create a will or trust, or review what you have, in or around Redlands, California, contact The Elder & Disability Law Firm, APC, for one-on-one attention and the creation of legal documents that are precise and focused on your wishes and the needs of your loved ones.