pixel

12 Common Estate Planning Mistakes You Must Avoid

12 Common Estate Planning Mistakes You Must Avoid Guide

Don't wait until it's too late.

Learn how to avoid the most common and most costly estate planning mistakes that could cost you thousands.
Get trusted advice from KF Law so your family, assets, and wishes are protected the right way.

What You'll Learn:

The #1 reason most families fail to protect their assets (and how to fix it)
Why Wills, joint ownership, and DIY documents can backfire
How even a solid estate plan can fall apart over time if not maintained
The truth about Living Trusts and why they’re not enough on their own
How to avoid probate, minimize taxes, and protect your loved ones
Most people don't plan to fail.
They simply don't know what's missing.

Protect your family for generations

Will your estate plan work when your family needs it most?
This guide will help you protect your legacy and family the right way.
Estate planning isn’t just about signing a Will or creating a trust. It’s about making sure your wishes are honored, your loved ones are protected, and your assets don’t get tied up in court or lost to taxes, creditors, or conflict.
At KF Law, we’ve seen firsthand how well-meaning people make costly mistakes that undo even the best intentions.
This guide walks you through 12 of the most common and most expensive estate planning missteps so that you can avoid them entirely.
Whether you’re just getting started or already have a plan in place, this guide will help you spot the gaps before they become problems.
family estate planning

Are You Making One of These Mistakes With Your Estate Plan?

Mistake 1

Procrastination... Not Doing Anything

Remember, most people don't plan to fail. They simply fail to plan.
There are many reasons why people don't do any estate planning. Some think the only reason to do estate planning is to write down "who gets what" after they die, and they think their families will be able to decide that among themselves.
Many people are confused, and rightly so, by incorrect and misleading information from professionals who are influenced by the products or services they sell.
Procrastination Risks:
> Without documented wishes, state law determines who inherits.
> Siblings or other relatives may disagree on distribution or guardianship, leading to stress, legal fees, and damaged relationships.
> Probate costs, court fees, and executor expenses can consume a significant portion of your estate before assets ever reach your heirs.
> As a result, many consumers don't know what to do or whom to trust, so they do nothing.
Key Takeaway:
Putting off your estate plan doesn’t make the need go away, it magnifies the risks for your family. Taking one small step today ensures your wishes guide the future, no matter what happens.
Do you relate to any of these?
I'm too busy.
I don’t own enough.
I’m not old enough.
I’m not ready to deal with death.
I don’t know who to trust.
I don’t know what to do.
Estate planning confuses me.
Mistake 1

Procrastination... Not Doing Anything

Remember, most people don't plan to fail. They simply fail to plan.
There are many reasons why people don't do any estate planning. Some think the only reason to do estate planning is to write down "who gets what" after they die, and they think their families will be able to decide that among themselves.
Many people are confused, and rightly so, by incorrect and misleading information from professionals who are influenced by the products or services they sell.
Procrastination Risks:
> Without documented wishes, state law determines who inherits.
> Siblings or other relatives may disagree on distribution or guardianship, leading to stress, legal fees, and damaged relationships.
> Probate costs, court fees, and executor expenses can consume a significant portion of your estate before assets ever reach your heirs.
> As a result, many consumers don't know what to do or whom to trust, so they do nothing.
Key Takeaway:
Putting off your estate plan doesn’t make the need go away, it magnifies the risks for your family. Taking one small step today ensures your wishes guide the future, no matter what happens.
Do you relate to any of these?
I'm too busy.
I don’t own enough.
I’m not old enough.
I’m not ready to deal with death.
I don’t know who to trust.
I don’t know what to do.
Estate planning confuses me.
Mistake 2

Owning Assets  Jointly

Joint ownership doesn't avoid probate, it just postpones it.
Joint ownership is a common way for spouses or parents to add a child as co-owner on bank accounts, real estate, or investments, often touted as an easy probate-avoidance strategy. But what most people don’t realize is that it merely delays probate rather than eliminates it, and it carries several hidden downsides.
Joint Ownership Risks:
Postponed probate.
On the first death, the survivor takes title without probate, but when the last owner dies, that asset still must be probated before passing to heirs.
Will loses control.
Joint assets bypass your estate plan; the surviving co-owner can sell, gift, or disinherit your intended beneficiaries.
Removing co-owners.
Adding is simple; removing often requires the consent of the co-owner or even a court battle.
Exposure to creditors.
A co-owner’s personal debts or lawsuits can force sale of the entire asset to satisfy their share.
Gift-tax consequences.
Adding someone as co-owner is treated as a gift by the IRS; gifts exceeding the annual exclusion (currently $19,000) must be reported.
Estate-tax traps.
Joint assets may push your combined estate above the state (IL: $4M) or federal ($13M) exemptions, triggering unnecessary taxes.
Guardianship Court.
If a co-owner becomes incapacitated, a court-appointed guardian may be appointed to manage or sell the property.
Key Takeaway:
Don’t let joint ownership derail your estate plan. Use beneficiary designations, transfer-on-death accounts, or a revocable trust to avoid probate and keep full control over who ultimately inherits.
Mistake 3

Relying On A Will For Your Estate Planning

A Will names your beneficiaries, but it won’t spare them from probate, guardianships, or public court battles.
Wills must pass through probate and can leave your family’s finances and personal affairs exposed in public court records, costing your loved ones time, money, and peace of mind. It provides no protection if you become incapacitated, and it can’t reach jointly owned property or accounts with beneficiary designations.
Will Reliance Risks:
Probate costs, delays & publicity.
Your Will must be probated, often costing 3–8% of your estate, taking 9–24 months, and exposing your assets and heirs in public court records. (In Illinois, creditors have 6 months after probate begins to file claims.)
Testamentary trusts still require probate.
Trusts created by your Will don’t activate until the Will itself has gone through probate.
No incapacity protection.
A Will only takes effect at death. Without powers of attorney or health directives, a court-appointed guardian controls your finances and medical care if you become incapacitated.
Assets outside your Will.
Jointly owned property and accounts with beneficiary designations bypass your Will, risking unintended transfers, disinheritance, or estate-tax surprises if your spouse inherits everything.
Guardianship for minor inheritances.
Leaving assets to children under 18 triggers a court-supervised guardianship before they can access their inheritance.
Key Takeaway:
Pair your Will with a comprehensive plan, revocable trusts, beneficiary designations, and powers of attorney, to avoid probate, protect incapacity decisions, and ensure assets flow exactly as you intend.
Mistake 4

Not Using A Living Trust

A Living Trust keeps your assets under your direction and out of the courts.
Living Trusts work like a Will but with far greater power and flexibility. By re-titling your assets in the name of your Trust, you retain full control (buying, selling, or revoking at any time) while automatically avoiding probate, maintaining privacy, and protecting your family if you become incapacitated.
Living Trust Benefits:
> Protect assets at incapacity. Your chosen successor trustee steps in, no court guardianship required.
> Shield minor inheritances. Trust terms govern distributions to children. No separate guardianship.
> Reduce or eliminate estate taxes. Trust strategies can minimize or eliminate tax burdens.
> Maintain total control. You remain trustee: buy, sell, or revoke assets anytime.
Key Takeaway:
Setting up a Revocable Living Trust delivers seamless asset transfer, incapacity planning, and tax efficiency so you can plan with confidence.
A Living Trust isn’t a gimmick.
It's a time-tested solution that fills the gaps of Wills and joint ownership keeping your family’s future secure.
Living Trusts also help you avoid probate costs, delays, and publicity.
Mistake 5

Not Funding Your Living Trust

A Living Trust only works if you actually transfer your assets into it.
Many people create a Revocable Living Trust and then stop short of re-titling their bank accounts, real estate, or investments in the name of the Trust. Whether due to procrastination, forgetfulness, or poor guidance, an unfunded Trust controls nothing, and your family loses the very benefits you paid for.
Leaving assets out of your Trust is the same as having no Trust at all.
Funding Oversight Risks:
Unfunded Trusts are powerless.
A Trust only controls assets formally titled in its name. Everything left in your personal name remains outside its reach.
Assets face probate or small-estate rules.
In Illinois, up to $100,000 in your name avoids probate, but anything over triggers full probate administration.
No incapacity protection.
Unfunded assets aren’t covered by your successor trustee; courts may appoint a guardian to manage them.
Lost cost savings & privacy.
Probate fees, delays, and public disclosure still apply to any asset you fail to transfer.
Missed distribution controls & tax benefits.
Trust-based instructions and tax-saving strategies only apply to funded assets.
Key Takeaway:
After creating a Living Trust, re-title every asset and keep it funded as you acquire new property to ensure seamless probate avoidance, incapacity protection, and precise control over your legacy.
Mistake 6

Leaving Everything To Your Spouse

Leaving it all to your spouse can trigger hefty taxes and unintended disinheritance.
Most couples rely on the Unlimited Marital Deduction to pass their assets to the surviving spouse, so there will be no estate taxes upon the first death. Yet by doing so, you forfeit one spouse’s tax exemption when the second spouse dies.
Without specialized planning, you expose your family to state estate taxes, risk mismanagement of assets, and remove any guarantee that children will inherit as you intended.
Leaving It All to Your Spouse Risks:
> Pay more in estate-taxes. You lose the first spouse’s Illinois $4 M exemption. Everything over that is taxed at 8–16%.
> Lost portability. Illinois has no “portability,” so without an AB Trust you can’t preserve both spouses’ exemptions.
> Risk of mismanagement. A surviving spouse may make poor investments or face undue influence, jeopardizing family wealth.
> Unintended disinheritance. An outright inheritance can be altered, leaving children with little or nothing.
> No control in blended families. Joint ownership does not safeguard the assets you want earmarked for your own children.
Key Takeaway:
A properly structured AB Living Trust splits your estate into two trusts, preserving both spouses’ exemptions, providing lifetime income support, appointing co-trustees if desired, and guaranteeing your children receive their inheritance tax-free.
Does this sound familiar?
“We left everything to each other in our Wills.”
“My spouse can manage any assets they inherit.”
“I assumed my children would get what’s left.”
“I didn’t know state exemptions could be lost.”
“I can always update my plan later.”
Mistake 7

Paying Too Much In Estate Taxes

Without proactive planning, reviewing your total estate, accounting for growth, and using proven strategies, you may be paying far more than necessary.
Estate taxes can feel like a penalty for success, but with legal, proven strategies, you never have to pay more than necessary.
People often assume estate taxes only hit the ultra-wealthy, overlook asset appreciation, or rely entirely on advisors who don’t proactively reduce their tax exposure.
Overpaying Tax Risks:
Ignoring exemption thresholds.
Federal ($13M) and Illinois ($4M) exemptions must be actively preserved. Anything above is taxed at up to 40% federal plus 8–16% state.
Overlooking asset appreciation.
Estates are valued on fair market value at death; growth in real estate, businesses, or investments can push you over the line.
Skipping gifting and basis planning.
Annual gifting, lifetime transfers, and stepped-up basis rules can shrink your taxable estate.
Not leveraging tax-saving trusts.
GRATs, QPRTs, and charitable trusts materially reduce taxable estate value.
Forgetting state quirks.
Illinois doesn’t allow exemption portability. Unused spouse exemptions vanish without an AB Trust.
Red Flags You’re Overpaying:
You’ve never totaled up every asset (real estate, retirement accounts, business interests).
You assume the current exemption covers future market gains.
You’ve never made a lifetime gift larger than the annual $19,000 exclusion.
Your advisor hasn’t discussed GRATs, QPRTs, or family-limited partnerships.
You rely solely on a basic Will or trust structure with no tax-saving tweaks.
Missing alternate vehicles.
Family-limited partnerships and charitable lead trusts both reduce estate size and shift future growth out of your estate.
Key Takeaway:
Understanding your true estate value can save your heirs hundreds of thousands of dollars. Actionable planning steps (valuation reviews, gifting strategies, & specialized trusts) allow you to preserve your wealth for the people you love.
Mistake 8

Leaving Everything Directly To Your Children After You Die

A full, immediate inheritance can expose your heirs to reckless spending, divorce losses, creditor claims, and a fresh round of estate taxes.
Handing your children your entire estate in one lump sum may feel like the ultimate gift, but it can unravel your legacy. Even well-intentioned heirs can make poor financial choices, face lawsuits or divorce settlements that wipe out their inheritance. 
Those assets also become part of their own taxable estates, triggering estate taxes upon their deaths and shrinking what reaches your grandchildren.
Inheritance Risks for Your Children:
Financial mismanagement. Sudden wealth can lead to overspending, gambling, or bad investments.
Future estate taxes. Those assets become part of your children’s estates and may face taxation at their deaths.
Creditor & divorce exposure. Inherited assets are vulnerable to claims, lawsuits, or divorce settlements.
No multigenerational control. You lose the ability to preserve wealth for grandchildren or specific purposes.
Loss of drive. Receiving everything at once can reduce motivation to pursue goals, drive, and productivity.
Lack of protection for minors. Without trust provisions, courts may appoint guardians for underage heirs.
The way you care for your children’s future now allows you to have a lasting impact on their lives even after you're gone. You can instill values and offer guidance, serving as a continual example for them.
Key Takeaway:
Instead of an outright gift, fund a continuing trust that governs distributions over time, shielding assets from claims and taxes, preserving your legacy, and guiding your children’s financial future.
Mistake 9

Not Keeping Your Estate Plan Current

An estate plan is a snapshot in time. It needs regular updates to reflect your changing life, assets, and the law.
Most people draft a Will or Trust, file it away, and never look back, only to discover too late that their documents name ex-spouses, omit new children, or rely on outdated tax rules.
Failing to review your plan at least every two years (or after major life events) can lead to unintended beneficiaries, costly probate, and missed opportunities to save on taxes or protect assets.
When to Review or Revise Your Plan:
Trustee or Successor Trustee moves, falls ill, dies, or decides not to accept the responsibility.
You, your spouse, or family member's health declines.
You plan to move to another state.
You or a family member marry or divorce.
Your spouse or other family member dies.
You plan to move to another state.
Value of your assets change.
Tax laws change.
> If you need to change your Trust or Will, do not write on your current Trust or Will, it could make the document invalid.
If that happens, your estate would go through probate as if you had no Will or Trust, your assets would be distributed according to the laws in your state, and any tax planning in your Will or Trust would be useless.
Key Takeaway:
Treat your estate plan like any important contract. Review it at least every two years and update it whenever your family situation, assets, or the law changes.
Mistake 10

Preparing Your Will Or Trust Yourself

DIY kits may seem cheap, but they often leave gaping holes in your estate plan.
Ordering a fill-in-the-blank Will or Trust kit for $19.95 may feel like a bargain, but generic documents rarely address state-specific rules, family complexities, or evolving tax laws.
Without a qualified attorney’s guidance, you risk drafting errors, invalid provisions, and overlooking details that can send your estate into probate.
DIY Warning Signs:
“I ordered a Will or Trust kit online.”
“I thought one generic form covers every state.”
“I didn’t check who drafted the documents.”
“I assumed simple fill-in templates were enough.”
“I believed I could fix any mistakes later myself.”
“I didn’t consider what happens if the publisher disappears.”
DIY Estate Planning Risks:
> Generic forms may not comply with court or your state’s laws.
> No tailoring for blended families, business interests, or unique assets.
> Unverified authorship and lack of legal review increase drafting errors.
> Flawed documents can trigger full probate or render trusts invalid.
> Publishers may vanish, leaving no recourse if problems surface.
> Mistakes cost your heirs extra legal fees, delays, and uncertainty.
Key Takeaway:
Don’t gamble your family’s future on off-the-shelf forms. Engage an experienced estate planning attorney to craft personalized, compliant Wills and Trusts that ensure your wishes are honored and your loved ones are protected.
Mistake 11

Using The Wrong Attorney

Your estate plan is only as strong as the specialist who creates it. Don’t settle for a generalist or sales-driven provider.
Find an experienced estate planning attorney who limits his or her practice to Trusts and Estate Tax Planning. A true estate planning attorney focuses exclusively on trusts and tax planning, customizes documents to your family’s needs, stays current on state laws, guides you through funding and updates, and stands by you for years to come.
Questions to Ask Before Hiring Your Estate Planning Attorney:
Do you limit your practice to trusts, estate tax planning, and related matters?
How many customized Wills, trusts, and tax-saving strategies have you drafted this year?
What is your process and level of involvement in funding trusts and retitling assets?
How will you tailor my documents to my family’s circumstances and state laws?
What security measures do you have for originals and duplicate documents?
How do you handle client communications and what are your policies on follow-up calls?
Which professional organizations do you belong to, and how do you stay current in estate planning?
Red Flags You May Have the Wrong Attorney:
Their practice spans many legal areas, only a small part is estate planning.
They promote “affordable” trusts at high-pressure seminars or door-to-door.
Documents are all legalese with no clear explanations or guides.
They hand you forms but offer no plan for retitling assets or funding trusts.
No memberships in estate planning bar sections or relevant continuing education.
No policy for secure storage, duplicate originals, or client support.
Key Takeaway:
Work with a dedicated estate planning attorney who listens, communicates clearly, and delivers custom, legally sound Wills and Trusts so your family’s future is protected exactly as you intend.
Mistake 12

Only Having A Living Trust

A Living Trust is vital, but without supporting documents, your plan remains unfinished.
A Revocable Living Trust is the perfect foundation for most estate plans. However, it is not the only document you need. You should also prepare the following documents:
Essential Support Documents:
Pour-Over Will
Sends “forgotten” assets under $100K (Illinois) back into your Trust after you die without probate.
Durable Power of Attorney (Property)
Empowers your Successor Trustee to manage assets and file taxes if you’re incapacitated.
Durable Power of Attorney (Health Care)
Grants authority to another person to make medical decisions for you when you can’t speak for yourself.
Living Will
Lets your physician know the kind of life support treatment you would want in case of terminal illness or injury.
Memorandum of Trust
A concise proof-of-trust for banks and brokers that confirms names of Trustee(s), and their powers, without revealing confidential information.
Medical Record Authorizations
Allow physicians to share documents about your incapacity while adhering to HIPAA laws (crucial for successors managing your trust or PoA.
Risks of Missing These Documents:
1. Forgotten assets are subject to probate or court guardianship.
2. Court-appointed guardians controlling your finances or healthcare.
3. Medical teams are unsure of your treatment preferences.
4. Beneficiaries left without proof of your Trust can cause delays.
5. HIPAA restrictions blocking access to vital health records.                                                                                                                                        
Key Takeaway:
Pair your Living Trust with these core documents: Pour-Over Will, Powers of Attorney, Living Will, Memorandum of Trust, and Medical Record Authorizations for a fully comprehensive estate plan.
crossmenuchevron-downarrow-up linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram