Most people know they should have an estate plan. Far fewer people actually have one — and of those who do, many have plans riddled with mistakes that will create real hardship for their families. These aren't obscure technicalities. They're errors made every day by people who thought they had it covered.
Here are the 10 most damaging estate planning mistakes we see, why each one matters, and what to do about it.
About 67% of Americans have no will. If you die intestate (without a will), state law — not your wishes — determines who gets your assets. Your state's intestacy formula may give everything to a spouse, split things equally between a spouse and children in ways that create practical problems, or in rare cases, pass assets to distant relatives you barely know. If you have minor children, a court — not you — will choose their guardian.
The fix is simple and inexpensive. A basic will from a reputable online service costs less than $100 and takes about 20 minutes. There is no excuse for not having one. See our best online will maker comparison to find the right service for your needs.
This is the most expensive mistake on this list — because people pay for a trust, feel protected, and then discover after they die (or their family discovers) that the trust was essentially useless. A living trust only controls the assets that have been transferred into it. If you created a trust but never retitled your home, bank accounts, and investment accounts in the trust's name, those assets will go through probate just as if you had no trust at all.
Funding a trust means changing the legal ownership of your assets from your personal name to the name of your trust (e.g., "John Smith" becomes "The John Smith Revocable Trust dated January 1, 2026"). This requires filing new deeds for real estate, updating account titles at banks and brokerages, and reassigning ownership of other assets. See our detailed guide on how to fund a living trust.
⚠️ Real-world consequence: An estate attorney we consulted described a case where a family paid $2,800 for a living trust — and still went through a full probate because the home was never retitled into the trust. They ended up paying another $14,000 in probate fees that the trust was supposed to prevent.
Beneficiary designations on retirement accounts (401k, IRA, pension), life insurance policies, and payable-on-death bank accounts are not controlled by your will. They're controlled by a form you filled out, possibly decades ago. And they override your will completely.
This creates catastrophic situations: ex-spouses receiving life insurance payouts. A child receiving an inheritance directly at age 18 who wasn't ready for it. A deceased parent listed as beneficiary, triggering probate anyway. Review every beneficiary designation after marriage, divorce, birth of a child, or death of a named beneficiary. Do it today — it costs nothing.
A will only takes effect when you die. But what if you don't die — you just become unable to manage your own affairs due to a stroke, dementia, a serious accident, or surgery complications? Without a financial power of attorney, your family cannot access your bank accounts, pay your bills, manage your investments, or make legal decisions on your behalf — even with the best intentions.
Getting legal authority to act on behalf of an incapacitated person without a POA requires a court-appointed conservatorship or guardianship. The process is expensive ($3,000–$10,000+), slow (months), and invasive. A durable financial POA costs almost nothing to create alongside your will, and it's one of the most important documents in any estate plan.
A healthcare directive (also called a living will or advance directive) tells doctors and hospitals what kind of medical treatment you want if you cannot speak for yourself. A healthcare power of attorney designates someone to make medical decisions on your behalf. Without these documents, medical providers may be legally unable to share information with your spouse or family, and end-of-life decisions can fall to hospital ethics committees instead of the people you trust.
This is another document that most online estate plan packages include at little or no additional cost. There is no reason not to have one.
Children under 18 cannot legally own significant assets. If you name a minor child as the direct beneficiary of a life insurance policy or retirement account, the court will appoint a guardian of the property to manage those funds — and that guardian must report to the court regularly, with associated legal fees — until the child turns 18. At that point, the child receives the full amount with no strings attached, regardless of their maturity.
The solution: name your trust as the beneficiary, with provisions for how and when the child receives funds. Or use a UTMA (Uniform Transfers to Minors Act) custodial account for smaller amounts. Either way, you maintain control over when and how the money is distributed.
The person you name as executor of your will or trustee of your trust will have enormous control over your estate during a difficult time. Choosing someone who is disorganized, financially irresponsible, geographically distant, in poor health, or in the middle of their own family conflicts is a recipe for a prolonged, contentious estate administration.
Common mistakes: naming a sibling who's been feuding with other siblings. Naming the oldest child by default rather than the most capable one. Naming a spouse who's elderly and may not be able to serve. Always name at least one backup — and consider a professional trustee or corporate executor for larger or more complicated estates.
Most people think estate planning is about death. It's equally about incapacity. Roughly 1 in 4 Americans will experience a period of disability during their working years. A comprehensive estate plan addresses both: what happens when you die, and what happens if you can't manage your own affairs during your lifetime. This means a durable financial POA, a healthcare POA, a living will, and — for larger estates — a trust with clear incapacity provisions.
Estate plans are not set-and-forget documents. Life changes, and your estate plan needs to change with it. The following events should trigger an immediate review:
A good rule of thumb: review your estate plan every 3–5 years regardless of life changes, and immediately after any of the events above.
If you own property in more than one state and you die with only a will, your estate must go through probate in each state where you own real estate. This means multiple probate proceedings, multiple sets of attorney and court fees, and potentially years of delay before your family receives those properties. A properly funded revocable living trust eliminates this problem entirely — the trust owns the property in all states, and your successor trustee handles everything without court involvement.
Trust & Will provides state-specific wills, trusts, and all supporting documents. Attorney-reviewed and legally valid in all 50 states.
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