Last year, I sat across from the two adult children of a successful Manhattan business owner. Their father had passed away suddenly, and while he had always talked about “taking care of things,” he never signed a will. They assumed they would inherit his company and brownstone, but because he was also survived by a second wife of only a few years, New York’s intestacy laws gave her the first $50,000 and half of the remaining estate. The future they expected was cut in half by a statute, not by their father’s intent.
Over decades of practice, I have seen how a few common, avoidable mistakes can derail a family’s future. Estate planning isn’t about filling out forms; it’s a deliberate act of stewardship over everything you’ve built. Here are the five errors I see most often.
1. Assuming the State Has a Good Plan for You
When you die without a will in New York, you do not decide who inherits your property. The state does. This is called dying “intestate,” and the rules are laid out in Estates, Powers and Trusts Law (EPTL) § 4-1.1. This law imposes a rigid, one-size-fits-all formula for distributing your assets.
The statute does not know your complex family dynamics. It does not know you wanted to provide for a lifelong partner to whom you were never married, or that you intended to leave a specific heirloom to a favorite grandchild. It does not care that one of your children is more financially responsible than the other. The law simply follows a predetermined hierarchy. For many families, this default plan is the last thing they would have wanted.
2. The False Economy of a DIY Will
The temptation to use a cheap online will template is understandable. It seems quick and efficient. This is often one of the most expensive mistakes a person can make. A will is a precise legal instrument, and its execution must comply with strict state requirements—including specific rules about how it is signed and witnessed. A small error can invalidate the entire document, landing your estate right back in an intestacy situation.
Worse, vague or boilerplate language can create ambiguity that must be resolved by a judge in Surrogate’s Court. The money saved on legal fees upfront is often spent ten times over by your heirs in litigation costs, all while your assets are frozen. A properly drafted will is an investment in certainty for your family.
3. Overlooking Beneficiary Designations
This is a subtle but critical error. Many people assume their will controls the distribution of all their assets. It does not. Assets like life insurance policies, 401(k)s, IRAs, and certain bank accounts pass directly to the person named on the beneficiary designation form.
These designations override your will. I once worked with a family whose patriarch had meticulously updated his will to provide for his children after his second wife passed away. What he forgot was the multi-million dollar life insurance policy he’d taken out 30 years prior, which still named his first wife—from whom he’d been divorced for decades—as the sole beneficiary. Legally, the money was hers. It was a devastating and entirely preventable outcome.
4. Believing a Will Keeps You Out of Court
A will does not avoid probate. In fact, a will is essentially a set of instructions written for the probate court. Probate is the formal, court-supervised process of validating your will, appointing your executor, paying your debts, and distributing your assets to your heirs. It is a public proceeding that can be time-consuming and costly.
For many of my clients, especially those who own real estate or value their privacy, a primary goal is to avoid this court process. This is often accomplished through the use of trusts, which allow assets to be managed and transferred outside the supervision of the Surrogate’s Court. A will is fundamental, but it is not always the complete picture.
5. Planning for Death, but Not for Incapacity
Your legacy plan must account for the possibility that you may become unable to manage your own affairs while you are still alive. If you are incapacitated by illness or injury without the proper documents in place, your family has no automatic authority to access your finances or make medical decisions for you. They would be forced to petition a court to have a guardian appointed—a public, expensive, and emotionally taxing process.
A durable power of attorney and a health care proxy are the instruments that allow you to choose, in advance, who you trust to handle these critical responsibilities. It is about maintaining control and protecting your family from unnecessary hardship. Stewardship.
These mistakes are not outcomes anyone would choose. They happen through inaction or incomplete information. The first step toward intentional planning is to gain clarity on where you stand today. I suggest starting with a simple inventory of your assets and a review of every beneficiary designation you have on file. If you would like professional guidance in this audit, our firm sets aside time specifically for these initial assessments.
