According to a 2020 Caring.com survey of 2,500 Americans, two out of three adults do not have a will, despite the pandemic highlighting the need for estate planning. Procrastination and the belief that they lack sufficient assets are the top reasons cited.
Eido Walny, founder of Walny Legal Group in Milwaukee, calls this a common tragic mistake. “The fact of the matter is that almost everyone over the age of 18 needs some estate planning documents,” he said. “Having documents can spare your family a lot of financial and emotional suffering.”
Below, estate planning attorneys outline the biggest mistakes they see clients make.
1. Assigning Co-Executors
Alice Choi, an estate planning attorney at Novick & Associates in New York, advises against naming multiple executors. “You should definitely just have one, then alternate executors,” she said. Co-executors often disagree, leading to family infighting and costly legal fees. She recalls a case with seven co-executors that became a disaster, requiring everyone to hire separate attorneys or sign waivers.
Carmen Rosas, an estate planning attorney in San Mateo, California, adds that if you must name more than one, choose an odd number to ensure majority rule. “If you have four children, it can be two against two, and then what happens?” she said.
2. Believing a Will Avoids Probate
David Watson, an estate planning attorney in Mequon, Wisconsin, warns that a will alone does not avoid probate if assets are titled solely in your name. “A valid will can direct asset allocation, but it won’t avoid probate for accounts without beneficiary designations,” he said. He cites a client whose father’s residence was solely in his name, requiring probate that cost $4,000—instead of a $30 Transfer on Death designation.
3. Being Vague About Sentimental Items
Rosas notes that general instructions like “equal share to all my kids” can lead to disputes over sentimental items. “People fight most over things with sentimental value, not money,” she said. She recommends specifying who gets heirlooms, such as her grandmother’s painting, to avoid family conflict.
4. Failing to Update Your Will
Dionna Reynolds, an estate planning attorney in Orland Park, Illinois, emphasizes updating documents after life events like marriage, divorce, or births. “Failure to update can exclude grandchildren if a child predeceases you,” she said. She advises revisiting your estate plan every five to seven years.
5. Not Considering the Impact of Gifts
Walny cautions against bequests that may harm beneficiaries. Leaving money to an 18-year-old could disqualify them from financial aid, while gifts to midlife adults might be lost to divorce, creditors, or addiction. For older beneficiaries, inheritance could jeopardize Medicaid eligibility. “Consider the recipient’s maturity and life situation,” he said.
6. Not Telling Anyone Where Your Will Is
Rosas recalls a client who had drafts but no signed documents, forcing the family to start over. “Put originals in a safe place and tell someone where they are, or at least give them your attorney’s contact info,” she said. Without clear instructions, loved ones may struggle to locate the will.
7. Working with a Non-Specialist
Walny warns against using a lawyer who doesn’t specialize in estate planning, such as a cousin who does litigation. “Estate planning is complicated, and there are traps for the unwary,” he said. He recommends the National Association of Estate Planners and Councils for vetted referrals. “The difference between good documents and bad can mean a lot of extra time, money, and heartache.”
