Five Estate Planning Mishaps to Avoid

Five Estate Planning Mishaps to Avoid

By Daniel O. Burroughs, Certified Elder Law Attorney (CELA)

Burroughs/ Elijah Attorneys

1. Failure to Plan for Death:  Without a Last Will and Testament or Inter Vivos Trust, state law dictates how your estate will be divided upon death.  In South Carolina, a surviving spouse is only entitled to a portion of a deceased spouse’s estate if the decedent is also survived by children.  This applies even if the children are adults.  A valid Last Will and Testament or Inter Vivos Trust enables you to draft around the statutory defaults and specify how your property will be divided upon death.

2. Failure to Plan for Incapacity: If you become incapacitated and don’t have a Durable Power of Attorney and/or Health Care Power of Attorney in place, your loved ones will likely need to petition the Probate Court to appoint someone as your Guardian and/or Conservator.  This process is complicated, expensive and creates a breeding ground for family conflict.  Executing a well-drafted Durable Property Power of Attorney and Health Care Power of Attorney can save you and your family a lot of trouble and headache at a much lower cost than the Guardianship/Conservatorship process.

3. Failure to Review Your Documents:  An outdated estate plan may sometimes be a worse alternative to no estate plan at all.  Life tends to become more complicated as you age. Health, family dynamics, and assets change over time, often necessitating a change in your estate plan.  It is advisable to review your estate plan with an Attorney at least once every five years.

4. Failure to Hire an Attorney:  It may be tempting to create your own estate planning documents without the assistance of an estate planning Attorney to try and save a few bucks.  Unfortunately, a form completed online or purchased at a local office supply store can’t provide the guidance necessary to create an estate plan that effectively addresses your planning needs.  Paying a competent estate planning Attorney to draft your documents will save your family from cleaning up a big mess upon your death and insulate your estate from hefty legal bills down the road.

5. Failure to Address Your Specific Needs:  Would you use a hammer to drive in a screw?  As a tool, your estate plan should be designed for the specific job at hand.  An effective estate plan must address your current and future needs (e.g. long term care planning/incapacity issues).  Your plan should also be tailored to the needs of your beneficiaries, such as disability, drug or alcohol dependency issues, money management issues, and complicated marriages.