Top 12 Estate Planning Mistakes and How to Avoid Them––Leigh Hilton

Top 12 Estate Planning Mistakes and How to Avoid Them

By Leigh Hilton, Denton County LIVING WELL Magazine

1.     Failing to Address Health Care Decisions

The mistake is actually failing to address healthcare decisions before the need arises. For example, a lady came into my office and said, “My neighbor is in the hospital unconscious. We have lived next door to each other for 30 years and we are best friends. I went to the hospital and the doctors won’t tell me what is happening with her. Is there a way for us to go to court and get me the right to make her medical decisions for her, because I know that is what she would want?” Unfortunately, my answer had to be there was nothing we could do now, because her neighbor didn’t have the proper documents in place.

2.     No Plan to Control Financial & Property Matters During Incapacity

Incapacity is harder to talk about than death, because we all know we’re going to die some day, but we won’t all become incapacitated.

3    No Wealth Transfer Strategy

Your wealth transfer strategy needs to be tailored to your assets and your particular family situation. I ask clients to tell me about their children and grandchildren. I can then customize the estate plan to their unique family situation.

4.   Failure to Understand & Plan for Medicaid and Veteran’s Benefits

A married veteran can qualify for up to $2,054 in aid and attendance benefits. The veteran must have served at least 90 days and at least one day needs to be during a defined period of war. The veteran must have a medical need and must need help with activities of daily living (bathing, dressing, toileting, etc.).

Medicaid is a way to get the federal government to pay for skilled nursing. There are asset and income requirements. With a married couple, there are ways to protect almost all the assets, and with a single person, we can protect about half of the assets.

5.   Thinking Children––Minor and Adult––Don’t Need Inheritance Protection

We can design a trust that protects even responsible beneficiaries from losing what you leave them to creditors, lawsuits and divorce.

6.   Failing to Transfer “Values”

It’s important to make sure your will or trust expresses what you value. You can add incentives for behaviors you want to encourage, like remaining off drugs, being employed, or completing a college education.

7.   Not Preserving Tax Deferral Benefits of Retirement Plans

When a retirement account is inherited by a non-spouse beneficiary, that beneficiary can take the account out over his or her lifetime. The problem is most beneficiaries do not realize this tax benefit exists, and they make the mistake of withdrawing the entire account immediately.

The better way to approach it is to place the retirement accounts in a Retirement Plan Trust, also known as an IRA Inheritance Trust™. This trust protects the retirement accounts from the beneficiary’s divorce, creditors, and lawsuits, and encourages the beneficiary to take it out over his or her lifetime.

8.   Failing to Organize and Consolidate

One of the biggest factors causing delays and increased cost is the inability to locate assets. Have a list of your assets and where they are located.

9.   In Second Marriages, Failing to Protect Your Spouse and Your Kids

Without a proper estate plan, your spouse and kids end up being co-owners of the property. A major decision in second marriages is how to divide the property to be fair to the spouse and children.

10. Failing to Plan for Tangible Personal Property

Your heirs are more likely to fight over the sentimental items than anything else. I encourage my clients to make a list of who they want these sentimental items to go to. If there is any family history, write that down so it’s not lost.

11. Access to Medical Records––Failing to Plan for HIPAA

HIPAA is the new privacy law that protects our medical records, but it can keep loved ones from being able to check on you in the hospital.

12. Believing Estate Planning is a “One-Time Event”

This is the most common mistake. Your estate plan should be reviewed every three years to make sure it still expresses your wishes. I meet with my clients every three years for free to make sure their families are protected.

Leigh Hilton has over 17 years of legal experience in the practice areas of estate planning and probate. She routinely prepares simple estate plans as well as very complicated wills and trusts for high wealth individuals. You may reach Leigh at 940-387-8800 or