Common Estate Planning Mistakes to Avoid

Estate planning rarely fails because someone never started—it fails because of small, avoidable errors. The following composite scenarios, drawn from common situations New York City families face, show how the wrong details can unravel even a well-intentioned plan.

Mistake 1: Using an Outdated Power of Attorney

Robert, a retired teacher in Forest Hills, signed a power of attorney in 2009 and assumed it would last forever. When his daughter tried to use it in 2026 to manage his accounts, the bank rejected it. New York substantially revised its statutory form under General Obligations Law §5-1513, and city banks now scrutinize these documents closely. The lesson: review your power of attorney every few years and re-execute it on the current form.

Mistake 2: Believing a Will Avoids Probate

A common myth is that having a will keeps your estate out of court. In reality, a will is the very document that goes through probate in the Surrogate’s Court under the SCPA. If you want to avoid that process—useful given how busy Surrogate’s Courts in Manhattan and Brooklyn can be—you generally need a revocable living trust under EPTL Article 7, not just a will.

Mistake 3: Creating a Trust and Never Funding It

Elena, a Tribeca condo owner, paid for a living trust and then filed it in a drawer. She never retitled her condo or accounts into the trust. When she passed, those assets were not owned by the trust, so they went through probate anyway. An unfunded trust is one of the most expensive mistakes in estate planning—you pay for the structure but get none of the benefit.

Mistake 4: Ignoring Beneficiary Designations

Your retirement accounts and life insurance pass by beneficiary designation, not by your will. A Queens man who divorced but never updated his 401(k) left it to his ex-spouse, overriding the will that named his children. These designations control regardless of what your will says, so review them after every major life change.

Mistake 5: Misunderstanding the NY Estate Tax Cliff

New York’s estate tax has a feature that surprises many affluent New Yorkers. For 2026 the exclusion is $7,350,000, but if your taxable estate exceeds the cliff at roughly $7,717,500 (about 105% of the exclusion), you lose the exclusion entirely and the whole estate is taxed. Estates landing just over the edge can owe far more than expected. Planning around this cliff—sometimes with charitable gifts—requires careful math.

Mistake 6: Confusing Revocable and Irrevocable Trusts

People sometimes expect a revocable trust to shield assets from nursing-home costs. It does not; you still control those assets, so Medicaid counts them. Asset protection generally requires an irrevocable trust, and New York’s five-year look-back means transfers must be made well before you need long-term care. Mixing up the two trust types can leave a family unprotected when it matters most.

The Bottom Line

Each of these mistakes shares a theme: estate planning is not a one-time signing but an ongoing match between your documents, your assets, and current New York law. A plan that was perfect a decade ago can quietly become a liability.

This article is general information, not legal advice. Because New York’s rules on execution, probate, and taxation are technical, consult a licensed New York estate planning attorney to review your plan and catch errors before they become your family’s problem in Surrogate’s Court.