A client’s father, a successful Brooklyn real estate developer, passed away with a will he’d signed in 1995. In it, he left everything to his first wife. The problem? He had divorced her in 2002, remarried, and had two more children. He simply never updated his documents. His new family believed they were his heirs; his old will said otherwise. The next two years of their lives were consumed by litigation in Kings County Surrogate’s Court, pitting family members against each other and draining the estate he worked so hard to build.
In my practice, I see the consequences of well-intentioned but flawed planning every day. An estate plan is not a static document you sign and file away forever. It is a living set of instructions that must evolve with your life. The costliest errors are rarely complex tax miscalculations; they are almost always failures of basic stewardship and maintenance.
The “Set It and Forget It” Plan
The most frequent mistake is treating estate planning as a one-time task. A will or trust that was prudent a decade ago can become a source of profound conflict after a major life event. These events include:
- A marriage, divorce, or remarriage
- The birth or adoption of a child or grandchild
- The death of a spouse or other beneficiary
- A significant change in financial status—either an inheritance or a business sale
- A child reaching adulthood or developing special needs
When documents are not updated, the law must step in to resolve the ambiguities. In the case of the developer, his surviving spouse was not left destitute. New York law provides a safety net. Under Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a “right of election” to claim a significant portion of the deceased’s estate, regardless of what an outdated will says. But this right is not automatic—it must be legally asserted, often leading to delays and family strife.
A deliberate review of your plan every three to five years, or after any major life event, is not a legal formality. It is an act of stewardship for the people you care about most.
Misunderstanding How Assets Are Transferred
Many people assume their will controls the distribution of all their property. It does not. Misunderstanding this distinction can accidentally disinherit a loved one.
Certain assets pass directly to a named person by operation of law, entirely outside the probate process and the instructions in your will. These are often called “non-probate assets” and include:
- Retirement Accounts: Your 401(k), IRA, or other qualified plans are distributed to the person you named on the beneficiary designation form.
- Life Insurance Policies: The death benefit is paid directly to the named beneficiary.
- Jointly Owned Property: Real estate or bank accounts held as “joint tenants with right of survivorship” automatically pass to the surviving joint owner.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: Bank and brokerage accounts with these designations are transferred directly to the beneficiary upon your death.
I once worked with a family where the father’s will left his estate in equal shares to his three children. However, nearly 80% of his net worth was in an IRA, for which he had named his eldest child as the sole beneficiary fifteen years prior and forgotten about it. Legally, the entire IRA belonged to that one child. His will’s instructions were irrelevant to his largest asset. While the children eventually agreed to honor their father’s intentions, it required a costly legal process that could have been avoided with a simple beneficiary audit.
Choosing the Wrong Fiduciary
Your executor, trustee, or agent under a power of attorney is your fiduciary. This person or institution has a legal duty to act in your best interest and the interests of your beneficiaries. Naming the wrong person for this role can be as damaging as having no plan at all.
Clients often default to naming their eldest child, a close sibling, or a friend. While the choice is based on love and trust, it is vital to ask practical questions. Is this person financially responsible? Are they organized and diligent? Do they have the time and emotional fortitude to manage an estate while grieving? Do they live nearby, or will they have to administer the estate from across the country?
Appointing co-trustees—for example, naming all three of your children to act together—can also create deadlock if they cannot agree. Sometimes, the most prudent choice is a neutral third party, like a corporate trustee or a trusted professional advisor. This person is not emotionally entangled in family dynamics and is bound by a strict fiduciary duty to follow your instructions impartially. The role of a fiduciary is not an honor; it is a demanding job. Choose the person best suited for the work.
Stewardship.
An estate plan is your final act of care for your family. Avoiding these common errors ensures that your legacy is one of provision and peace, not one of confusion and conflict. Your plan should reflect the life you’ve lived and the people you love—not the circumstances of a decade ago.
If your will, trust, or beneficiary designations have not been reviewed in the last five years, the first step is a simple one. We can schedule a meeting to review your existing documents and map them against your current family structure and financial picture to identify any outdated provisions.
