10 Fatal Mistakes That Tear Families Apart

Mistake #1: Relying on the government’s estate plan. If you do not set up an estate plan, your property will be distributed according to the laws of the state where you live. The law may require the probate judge to give your property to someone other than the person’s you would have chosen.

Mistake #2: Relying on a will. If your estate plan consists only of a will, your heirs will face many costly problems, such as probate and/or guardianship proceedings. True, a will is the most common estate planning tool, but it is not a good tool for you to use.

Mistake #3: Relying on joint tenancy. Almost everybody owns their home and bank accounts in joint tenancy. Yet joint tenancy often causes families horrible legal nightmares. You have many options that are better and safer than owning property in joint tenancy, and they come with much less risk.

Mistake #4: Relying on community property with right of survivorship. Owning property as community property is a better choice for married couples than owning property in joint tenancy. But your property will still have to go through probate on the death of the second spouse.

Mistake #5: Relying on conservatorship and guardianships. These court-supervised proceedings for addressing your physical or mental incapacity are costly, time-consuming and horribly burdensome. When you set up a living trust, you avoid the need for conservatorship and guardianships.

Mistake #6: Relying on the small estate exemption as your way of avoiding probate. Most people assume their estates are worth far less than they actually are. The small estate exemption that avoids probate is permitted only for estates with a value of less than $50,000 in real estate or $50,000 in personal property. Most estates do not qualify.

Mistake #7: Relying on a gifting program as your way of avoiding probate. The law allows you to give away your property at a rate of $10,000 per person per year. A married couple can give $20,000 per year to anyone they choose without gift tax consequences. While this is an effective way to reduce the size of your estate, it has two down sides: First, you lose control of your assets, and second, you may not be able to give away property as quickly as you need to.

Mistake #8: Relying on boiler-plate living trust documents to provide for your spouse and children. When you create your living trust, you have the opportunity to write specific instructions about how you want to provide for your surviving spouse and children. If you overlook this opportunity, your family will receive whatever care the one-size-fits-all form documents provide. That level of care is almost never as good as the care you would want your family to receive.

Mistake #9: Relying on a form kit for your will or living trust. One size does not fit all because no two people are alike. Do you know anyone who has exactly the same property you have — and who wants their property to go to the same people as you? Your estate plan should be custom drafted to meet your specific needs. If you use a form kit, you’re asking for problems. The only estate plan you can depend on is one that is custom prepared by a qualified attorney.

Mistake #10: Relying on the wrong attorney. Most attorneys know very little about estate planning. And even estate planning attorneys may not want you to avoid probate if a large part of their earnings are from probate. Make sure you hire an estate planning attorney who wants to help you achieve your goals.