Attorney Brandon L. Campbell: The 5 Worst Estate Planning Mistakes I See Every Month

As an estate planning and elder law attorney, I spend a lot of time helping families solve problems. Unfortunately, many of those problems could have been avoided with a little planning.

The good news is that most estate planning mistakes are surprisingly common—and surprisingly fixable. The bad news is that people often don’t discover them until a loved one dies, becomes incapacitated, or needs long-term care.

Here are the five worst estate planning mistakes I see every month.

1. Having No Estate Plan at All

This is the most obvious mistake on the list, but it remains one of the most common.

Many people assume that if they pass away without an estate plan, everything will simply go where they would have wanted it to go. Unfortunately, life is rarely that simple.

Without a will, trust, durable power of attorney, or health care proxy, your family may be left navigating a legal maze during an already difficult time. The Massachusetts intestacy laws will determine who inherits your assets, regardless of whether those results match your wishes. If you become incapacitated without the proper documents, your loved ones may have to seek a guardianship or conservatorship through the court.

I often tell clients that having no estate plan is still a plan—it’s just one written by the Massachusetts legislature and the Probate Court rather than by you.

A basic estate plan allows you to choose who will make decisions for you, who will inherit your assets, and how those assets will be managed. Without one, those decisions may be made by people you’ve never met.

2. Having an Estate Plan So Old Nobody Can Find It

The second mistake is having an estate plan that exists somewhere in theory.

I routinely meet people who tell me they signed estate planning documents twenty years ago. They are fairly certain the documents exist. They believe they were placed in a safe location. Unfortunately, nobody remembers where that location is.

Even when the documents are found, they may no longer reflect the client’s wishes. Children grow up. Beneficiaries pass away. Trustees move, retire, or become unsuitable. Tax laws change.

Estate plans should be reviewed periodically, particularly after major life events. A good rule of thumb is to dust off your documents every few years. If the paperwork is older than your smartphone, it may be time for a review.

3. Thinking a Will Avoids Probate

This misconception is so common that it deserves its own category.

Many people tell me they don’t need a trust because they already have a will. What they often don’t realize is that a will does not avoid probate. In fact, a will is the document that tells the probate court what should happen to your assets.

For many families, avoiding probate is one of the primary goals of estate planning. Probate can be time-consuming, public, and expensive. Yet I frequently meet people who believe they have solved the probate problem simply because they signed a will years ago.

A will-based plan may be entirely appropriate in some situations. But if probate avoidance is important to you, a will alone is usually not the answer.

The key is understanding what your documents actually do—not what you hope they do.

4. Creating a Trust and Never Funding It

This is the estate planning equivalent of buying a safe and leaving all of your valuables on the kitchen table.

Clients often spend considerable time and money creating a revocable trust. Then they never transfer assets into it.

A trust can only control assets that it actually owns. If bank accounts, investment accounts, real estate, or other assets remain outside the trust, those assets may still require probate despite the existence of the trust.

Creating a trust is only the first step. Funding the trust is what makes it work.

When I review existing estate plans, unfunded trusts are among the most common and costly problems I encounter. The trust may be beautifully drafted, but if assets were never transferred into it, much of the intended benefit can be lost.

5. Ignoring the Massachusetts Estate Tax

Many people are aware of the federal estate tax exemption and assume estate taxes are not a concern.

Massachusetts has its own estate tax system.

As a result, married couples with moderately sized estates may have estate tax exposure even when no federal estate tax is due. Yet many plans either fail to address the Massachusetts estate tax altogether or rely on outdated tax planning provisions that no longer achieve the intended result.

For some families, credit shelter trust planning can help reduce or eliminate Massachusetts estate taxes while preserving flexibility for the surviving spouse.

The point is not that everyone needs complicated tax planning. The point is that everyone should at least know whether they have a potential tax problem before it becomes an expensive surprise.

Honorable Mention: Leaving Assets Directly to Minors

Parents and grandparents often want to leave assets to children or grandchildren. The problem arises when those beneficiaries are minors.

A minor generally cannot directly manage inherited assets. If substantial assets are left outright to a child, a court proceeding may be required to appoint someone to manage those funds until the child reaches adulthood.

And once the child reaches the applicable age, they may receive full control of the inheritance all at once.

Most parents are not eager to hand a large inheritance to an eighteen-year-old. After all, many teenagers still struggle to keep track of their car keys, never mind a six-figure inheritance.

Proper trust planning can provide structure, protection, and flexibility while ensuring the inheritance is used for the child’s benefit.

Final Thoughts

The encouraging news is that most estate planning mistakes can be corrected before they become crises.

Whether your plan is outdated, incomplete, unfunded, or simply nonexistent, taking the time to review your planning today may save your family significant expense and stress tomorrow.

Estate planning isn’t really about documents. It’s about making life easier for the people you care about most.