10 Common Estate Planning Mistakes to Avoid

Mistakes in estate planning are often discovered when it’s too late—after the person has died or become incapacitated. The cost of fixing these errors can be steep, both financially and emotionally. Below are ten common missteps and how to avoid them in West Virginia.

1. Having no plan at all

The biggest mistake is simply doing nothing. If you die without a will in West Virginia, your property is distributed according to the state’s intestate succession laws. This process prioritizes spouses and children but may exclude step‑children, unmarried partners, or charities. Without a plan, you have no say in who will administer your estate or how your assets are divided. In addition, failing to file a will with the county clerk within 30 days of death is a misdemeanor, which can further complicate matters for your family.

Solution: Work with an attorney to create a comprehensive estate plan. At minimum, draft a will and consider trusts to avoid probate. Appoint an executor and ensure your wishes are documented.

2. Not naming contingent beneficiaries

Beneficiary designations on retirement accounts, life insurance, and bank accounts override instructions in your will. If your primary beneficiary dies before you and you haven’t named a contingent (secondary) beneficiary, the asset may go through probate or be distributed according to default rules. National estate planning resources emphasize the need to name both primary and contingent beneficiaries.

Solution: Review beneficiary designations regularly. Always list a secondary beneficiary and update designations after marriages, divorces, or deaths.

3. Failing to plan for incapacity

Estate planning isn’t just for death; it also addresses what happens if you become mentally or physically incapacitated. Without a durable power of attorney and healthcare directives, your family may need to seek court‑appointed guardianship. Under West Virginia’s Uniform Power of Attorney Act, a general POA allows a trusted agent to handle property decisions. Separate documents—like a living will and medical power of attorney—govern health care decisions.

Solution: Execute a durable financial power of attorney and a medical power of attorney. These documents allow a trusted person to manage your finances and make healthcare decisions if you can’t.

4. Neglecting long‑term care planning

Many seniors will require long‑term care, which can quickly deplete savings. Strategies like irrevocable trusts and timed asset transfers can help you qualify for Medicaid without impoverishing your spouse. Failing to plan may force you to spend down assets or sell the family home.

Solution: Consult an attorney about Medicaid planning at least five years before you anticipate needing care. Consider purchasing long‑term care insurance or establishing a trust.

5. Forgetting to update your plan

Life changes. Marriage, divorce, the birth or adoption of children, the death of a beneficiary, relocation to another state, or acquiring major assets should trigger a review of your estate plan. Many people sign documents and never revisit them, leaving outdated instructions. Dworken Law notes that attorneys can help keep your plan current.

Solution: Review your estate plan every three to five years or whenever a major life event occurs. Make adjustments with your attorney to reflect new circumstances.

6. Improperly titled assets

Joint ownership and beneficiary designations can override will provisions. If you own property jointly with rights of survivorship, it passes directly to the surviving owner regardless of what your will says. Similarly, assets with payable‑on‑death designations bypass probate. Mistakes occur when people set up joint accounts without considering the full implications, inadvertently disinheriting intended heirs.

Solution: Work with your attorney to ensure asset titles match your estate plan. Retitle property into your trust, if you have one, and coordinate beneficiary designations.

7. Not funding your trust

Establishing a revocable living trust can avoid probate and provide ongoing management of assets. However, a trust is useless if it isn’t funded. Many people sign the trust documents but never transfer assets into the trust.

Solution: After signing the trust, retitle real estate, bank accounts, and other assets into the name of the trust. This may involve updating deeds and account forms.

8. Leaving lump sums to minors or special‑needs beneficiaries

Minor children cannot own property directly. If you leave money to them outright, a court may appoint a guardian to manage the funds until they turn 18, potentially imposing additional costs. Likewise, leaving assets outright to a beneficiary with disabilities can jeopardize their eligibility for government benefits.

Solution: Establish trusts for minors or special‑needs beneficiaries. A testamentary trust or special needs trust can control distributions and protect benefits.

9. Overlooking digital assets and business interests

In the digital age, online accounts (e‑mail, social media, cryptocurrency) and small business interests are valuable. Without instructions, executors may struggle to access accounts or value the business.

Solution: Keep a secure list of digital assets and passwords. Include provisions in your will or trust granting your executor authority to manage digital property. For business owners, create a succession plan or buy‑sell agreement.

10. Failing to communicate with family

Surprises often lead to disputes. Failing to tell your family about your estate plan—especially if distributions are unequal—can foster resentment and litigation.

Solution: Discuss your intentions with your executor and loved ones. Share where documents are stored and who is responsible. While you’re not obligated to disclose all details, transparency can ease tensions.

Conclusion

Estate planning is not a one‑time event. By understanding and avoiding these common mistakes, you can protect your assets, provide for loved ones, and minimize stress. Work with a qualified attorney and revisit your plan regularly to keep it aligned with your goals.