5 Estate Planning Mistakes That Leave Families Stuck in Court
Even smart, well-organized families can run into snags when creating their estate plans. Estate planning has a lot of moving parts, and it’s easy to miss details that could turn into long, expensive court processes for the people you love.
The good news is that all of these mistakes are preventable and easily fixed when you know what to look for. With a clear plan in place, you can protect your family from unnecessary stress during an already-difficult time.
Here are the top 5 mistakes I see families make that can leave them stuck in court—and what to do instead.
Mistake #1: Waiting too long to create a plan
The mistake:
Most people think of estate planning as something they’ll do “later.” They plan to update their will after the kids are older, after a job change, after one more move… and then life gets busy. By the time they finally sit down to start, a sudden medical diagnosis can leave one or both partners incapacitated, without the full legal capacity to sign critical documents.
Why it matters:
Estate planning isn’t just about age or assets; it’s about capacity. If an adult is unable to make decisions for themselves, even temporarily, a court has to step in and appoint someone unless they’ve already named a trusted power of attorney. Children can end up in limbo unless a clear legal guardian has already been decided, even if the rest of the family agrees on who should take care of them. This process can take months and usually involves lots of paperwork, hearings, and ongoing court supervision.
What to do instead:
- Create or update your plan while everyone involved has full capacity.
- Handle the basics first: a will or trust, powers of attorney, healthcare directives, and beneficiaries.
- Revisit your plan at predictable life milestones (every 3–5 years, or after major changes).
Mistake #2: Choosing the wrong guardian or trustee
The mistake:
It’s not uncommon to name a beloved family member as a trustee or guardian at a time when they’re living nearby, healthy, and deeply involved with the kids. But life happens, and sometimes those family members move across the country, struggle with health issues, and simply aren’t in a position to serve. If their name is still on those legal documents, the circumstances don’t matter to the court—they are still your children’s legal guardian or the trustee in charge of your estate.
Why it matters:
Courts rely heavily on your written choices. If the person listed is no longer able to serve, your family may need to petition the court to appoint someone else. That process can be slow and stressful, and in emergency situations, children may be placed in temporary state care until the court sorts things out.
What to do instead:
- Review your guardian and trustee choices regularly.
- Choose people who are physically able, trustworthy, and truly willing.
- Include alternates so there’s a clear next step if your first choice can’t serve.
Make your plan easy for your family to follow
Download our free Peace of Mind Through Estate Planning ebook, which includes everything you need to know to start important conversations and create a clear plan.
Mistake #3: Assuming a will avoids probate
The mistake:
Wills are such a common cultural touchstone that many people assume a will means a simple, private handoff of their assets. In reality, even well-written wills require your estate to go through probate. Probate is a court process that often takes months, involves public filings, and can cost families thousands in legal fees.
Why it matters:
A will does not avoid probate. Probate is required in Georgia for wills, and it is a slow, expensive, and frustrating process for families navigating what is often the most difficult period of their lives. Even families with simple situations can find themselves attending hearings, filing petitions, and waiting for the court to approve routine decisions.
What to do instead:
- Consider a revocable living trust to keep your assets out of probate.
- Make sure the trust is properly funded, meaning that assets must be titled correctly.
- Use a will as a backup document, not your primary estate planning tool.
Mistake #4: Not updating the plan after major life changes
The mistake:
When couples first create an estate plan, they often own one home and have two children. Years later, their lives look different. They might have added a rental property, sold a business, had a third child, or gotten divorced and remarried. It’s not uncommon for the original estate plan to survive all of these life changes, meaning they have a plan that doesn’t reflect their present reality.
Why it matters:
Families change, finances shift, and your estate plan needs to reflect those milestones. If the plan isn’t a match for what your life looks like today, your loved ones will need the court’s help to interpret missing information or resolve conflicts between outdated documents.
What to do instead:
- Update your plan after major events, including: births, deaths, marriages, divorces, relocations, real estate changes, or major asset changes.
- Review beneficiaries annually to ensure your estate will go where you want it to.
- Set a reminder to check in on your plan every 3-5 years and make sure you still agree with the decisions you made. (Having an estate plan that’s easy to read makes this a very simple task!)
Mistake #5: Not telling anyone where the plan is or how it works
The mistake:
Maybe you store your legal documents in a fireproof box… but never tell anyone the combination. Or they’re in a safe deposit box at the bank, but you’re the only one who knows which bank. After a sudden loss, families sometimes can’t access critical documents such as the will, trust documents, and property deeds, and have to scramble to reconstruct information during a difficult time.
Why it matters:
Even a perfect estate plan is useless if no one can set it in motion. Confusion about which documents exist (or where they live) can lead to delays, court involvement, or even disputes between family members. And if your family does know where to find the documents, but has to hire an attorney to decipher them, the resulting confusion can have similar consequences.
What to do instead:
- Tell trusted family members and beneficiaries where your documents are kept.
- Share contact information for your estate planning attorney, financial advisor, and any other key third parties.
- Leave clear instructions about next steps so no one is left guessing.
FAQs
Do wills have to go through probate in Georgia?
Most wills in Georgia must go through probate. For most families, a revocable living trust is the best way to avoid probate.
What assets don’t go through probate?
Life insurance, retirement accounts with named beneficiaries, joint accounts with right of survivorship, and assets titled in a trust typically bypass probate.
When should I update my estate plan?
Estate plans should be updated after major life changes such as marriage, divorce, birth, death, relocation, or significant asset changes.
Do I need an attorney, or can I draft my own estate plan?
Template-based documents often leave gaps, inconsistencies, or unfunded trusts. An attorney ensures your whole plan will work when you need it and protect your family as intended.
What’s the first step if I’ve never done estate planning before?
Start by finding a qualified estate planning attorney in your state. A short consultation call can help you understand your options and next steps.
Avoiding these mistakes is easier than you think
Estate planning doesn’t have to be overwhelming, scary, or complicated. It’s about making thoughtful decisions now so your family isn’t left navigating surprises in court later. Following the recommended actions above is a great start for giving your loved ones clarity and peace of mind, even under the worst circumstances.
Download our free Peace of Mind Through Estate Planning ebook or schedule a consultation call to talk through your next steps.
