A client once came to my office with his late mother’s will. He was the executor and primary beneficiary, and he believed the document was the final word on her lifetime of work. The will was clear: everything she owned was to be split between him and his sister. But her largest single asset was a seven-figure brokerage account. The beneficiary designation form, signed 20 years earlier, named her ex-husband. The will was powerless to change it. The account went to the ex-husband, leaving the children with a fraction of what their mother intended.
This happens more often than you might think. A will is a cornerstone of an estate plan, but it is not a magic wand. In my decades of practice, I’ve seen how persistent myths cause enormous pain for families. The law is specific, and what seems like common sense is often not how matters proceed in New York’s Surrogate’s Court.
Stewardship is about being deliberate. It requires understanding the tools you are using and the rules that govern them. Here are a few common misconceptions I see in my practice.
Myth 1: My Will Controls All of My Assets
This is the single most dangerous assumption in estate planning. A Last Will and Testament only governs the distribution of your probate assets—those titled in your individual name that do not have a designated beneficiary or a joint owner with rights of survivorship.
Many of your most valuable assets likely fall outside your will’s control. These non-probate assets pass directly to a named person by operation of law. They include:
- Retirement Accounts: IRAs, 401(k)s, and 403(b)s pass to whomever is named on the beneficiary designation form held by the account custodian.
- 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 rights of survivorship” automatically pass to the surviving owner.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts: These bank and brokerage accounts transfer directly to the designated beneficiary.
Your will can say one thing, but a beneficiary form from 15 years ago says the final word. An intentional estate plan requires that your will, trust, and beneficiary designations work in concert. Without that alignment, your intentions can be easily defeated.
Myth 2: Being a Trustee is an Honorary Title
Being named a successor trustee for a loved one’s trust is an act of profound confidence. Many accept the role assuming it’s a simple administrative task—pay a few bills, write a few checks, and you’re done. This could not be further from the truth.
A trustee is a fiduciary. That legal term carries immense weight. It means you have a duty of absolute loyalty, prudence, and care to the trust’s beneficiaries. You must manage trust assets, make prudent investment decisions, file tax returns, and provide regular accountings. You must act impartially, even when beneficiaries—who may be your own family members—disagree.
New York law takes this fiduciary duty seriously. The Estates, Powers and Trusts Law (EPTL) § 11-1.7 expressly forbids any will or trust from exonerating a fiduciary from liability for failing to exercise “reasonable care, diligence and prudence.” You cannot simply “do your best.” You are held to a high legal standard, and a breach of that duty can expose you to personal financial liability. Before accepting this role, or naming someone to it, understand the deep responsibilities involved.
Myth 3: “Fair” and “Equal” Mean the Same Thing
Clients often tell me they want their estate to be divided “fairly” among their children. In their minds, that usually means “equally.” But in the language of a will or trust, specific words can lead to outcomes that feel anything but fair.
Consider a simple plan. A woman from Queens has two adult children, a son and a daughter. Her will states her estate should be divided “in equal shares between my children.” A few years later, her son tragically passes away, leaving two young children of his own. When the woman eventually passes, what happens? Based on that language, her entire estate could go to her surviving daughter. The grandchildren from her deceased son might receive nothing.
This is because the gift to her son “lapsed.” A more prudent plan would have specified a per stirpes distribution. This legal term ensures that if a child predeceases you, their share automatically passes down to their own children. It is a small but critical detail that protects the next generation and preserves what most people would consider the truly “fair” outcome.
An effective estate plan is not built on assumptions. It is built on precision, foresight, and a clear understanding of what the law can—and cannot—do. It is about translating your intentions into a legal framework that will stand up under scrutiny when you are no longer here to clarify what you meant.
The first step toward clarity is an audit. To identify potential conflicts like these, schedule a confidential review of your asset titling and beneficiary designations to ensure they align with the goals stated in your will or trust.
