Introduction: Why Bulletproofing Your Estate Plan Matters
If you’ve taken the time to create a will, revocable trust, powers of attorney (for financial decision making and medical care), a living will, and or one or more irrevocable trusts, you’re already ahead of the curve.
But here’s the hard truth: even a well-thought-out estate plan can unravel over time, or in the face of challenges from disgruntled heirs, legal technicalities, outdated documents, or questions about your capacity.
And while we all hope that our wills and plans don’t get challenged (or fail to work properly) you never know about relationships of children, their spouses or others who might influence them.
And any one or all of these factors can all place your legacy, and your family’s financial future, at risk. Worse yet, often, the greatest threats come not from poor planning, but from inattention, the passage of time, and a failure to coordinate beneficiary designations and asset ownership with your estate planning documents.
In our many decades of experience advising high-net-worth families, we’ve been very successful in helping them to avoid problems. But we’ve also seen too many court cases involving plans that falter, not because the intentions were wrong—but because the execution wasn’t bulletproof and the ongoing attention just wasn’t there.
And when plans fail, it’s not generally the lawyer or the judge who suffers—it’s your family, your wishes, and your legacy that pay the price.
This article is your step by step guide to doing what you can to protect what matters most and making sure that you’re getting great advice from your estate planning team.
Think of it as an insider’s “secret” checklist based on years of trust and estate experience, psychological insight, and enhanced communication strategies to prevent the most common (and most devastating) will challenge problems.
Key Areas Where Estate Plans Break Down (And What to Do About Them)
- Outdated Documents and Uncoordinated Planning
- Challenges to Mental Capacity or Undue Influence
- Informal or Improper Execution of Documents
- Failure to Update After Life Changes
- Poorly Chosen or Unprepared Executors, Trustees, Agents and Trust Protectors
- Lack of Clarity and Specificity in Key Provisions
- Missing or Incomplete Documentation of Formalities
- Lack of Coordination Between Estate Plan and Asset Titles/Beneficiaries
- Including a No Contest Clause – What you need to know
- Using the “wrong” approach for the situation
The ways to make the success and survival of your planning more likely: careful and regular planning, strategic thinking, documenting your “testamentary capacity” and health issues, as well as training and mentoring of trustees, executors, agents, and trust protectors, attention to coordinating TOD and beneficiary designations with your estate planning documents, are often ignored but can mean the difference between a successful and a flawed or failed plan.
Let’s take each one of the bullet points and issues one at a time and do a deeper dive to help to to protect your legacy.
1.Outdated Documents and Uncoordinated Planning Estate planning is not a one-and-done endeavor. Laws change. Tax rules shift. Your assets evolve. Children and grandchildren are born. Relationships and your thinking change.
Yet too often, people create a will or trust and put it in a drawer, untouched for years—or even decades.
An outdated estate plan is like an old map—it may have once been accurate, but now it could lead your loved ones straight into confusion, disputes about your intentions, and the legal quicksand of will disputes and litigation. Even the most thoughtfully crafted plan can fail if it isn't reviewed and aligned with real-life changes and financial accounts.
What you should do:
- Review your plan at least every 5 to 7 years—or sooner if there’s a major life event.
- Work with your financial advisers following the execution of your planning documents to ensure your will, trusts, powers of attorney, healthcare directives, and Joint ownership/TOD/beneficiary designations are in harmony.
- Consider using a coordinated asset alignment checklist with your estate attorney and other advisers to ensure your trust and titling are synchronized. This is always important but even more so if you’ve created a revocable or living trust where assets may need to be moved into the trust (or where you have created an irrevocable trust that also needs a tax return each year)
Admittedly, these things can take time (and most clients don’t want or need to pay lawyers to help them with beneficiary designations), but that review by you, and or with your advisers is a vital step to ensuring your plan works as you desired.
2. Challenges to Mental Capacity or Undue Influence This is one of the most common ways a will or trust gets challenged—particularly in affluent families. Allegations that you “lacked the capacity to execute the documents,” “weren’t of sound mind,” or were otherwise pressured into changes can devastate a plan.
The solution? Think like an attorney—and a psychologist.
- Use cognitive assessments contemporaneous with plan execution to document that you were able to act. Again, this is an additional expense, but we use these reports – especially where there is a known danger of a challenge – to minimize the likelihood of a challenge and/or to prevent a successful challenge.
- Document the reasons for your decisions—especially if you’re excluding or reducing a beneficiary’s share.
- Include professionals—such as doctors or psychologists—if you anticipate challenges.
- We also document planning meetings (and the execution) thoroughly, showing your clear reasoning, active participation, and awareness of implications.
3. Informal or Improper Execution of Documents Even the most beautifully crafted plan can be rendered invalid by sloppy execution. State law governs how documents must be signed and witnessed, and deviations create fertile ground for litigation.
- Always sign with proper witnesses and notaries present. Here at the firm, we make witnesses and a notary available to you for your convenience.
- Consider using neutral professional witnesses who can testify if needed.
- We also create a formal execution memorandum that includes date, location, attendees, and notes about the client’s demeanor and cognitive state. This type of documentation can be vital if one or more of the witnesses or notary are deceased or otherwise unavailable when a will is challenged.
In short, we go beyond the minimum: We make sure the witnesses and notary are there for you and then document the formality of execution meticulously.
4. Failure to Update Following Life Changes Marriage, divorce, births, deaths, disability, financial changes, business succession, the growth or diminishment of asset values—should trigger a full review of your estate plan. Failure to adapt your plan to the passage of time, can leave unintended heirs in control, outdated fiduciaries in charge, or assets flowing where you never intended.
Worse, beneficiary designations or jointly titled accounts often supersede what’s in your will or trust.
If beneficiary designations or titling of assets through TOD designations haven’t been updated, your plan can be overridden without your heirs ever knowing.
What to do:
- Build a regular review cycle into your planning process.
- Create a “Life Event Checklist” for annual use.
- Proactively educate adult children and fiduciaries about changes (where appropriate). NOTE: We offer regular training programs and customized “Family Meetings” and Training Sessions.
- Align beneficiary designations and joint ownership with your estate planning documents.
5. Poorly Chosen or Unprepared Executors and Trustees Selecting the wrong person can cause more harm than good. Even trustworthy individuals may lack the knowledge, temperament, or time to handle fiduciary responsibilities. And, even if you pick the right people at one point in your life, the time may come when that selection no longer makes sense.
What to do:
- Carefully select and perhaps even vet estate planning job holders & fiduciaries (executors, trustees, trust protectors and agents) with your attorney’s help.
- Consider using professional and or independent co-trustees for checks and balances.
- Prepare fiduciaries with clear instructions, tools, and education well before they’re needed.
6. Lack of Clarity and Specificity in Key Provisions Ambiguity is the enemy of good planning. Vague language around distributions, discretionary powers, or asset management leads to disputes, delays, and potentially court involvement.
And while ambiguity can never be completely eliminated, carefully reviewing the documents with your attorney and over time, can help to minimize ambiguity and to ensure higher levels of clarity.
What to do:
- Use precise language in trusts and wills and review “dispositive” clauses with your attorney.
- Include a “Letter of Wishes” or side memorandum that can help to clarify your intent and give important background information and context.
7. Missing or Incomplete Documentation of Formalities Courts place enormous weight on documentation. In litigation, our ability to point to our own and your own planning records, client memos, cognitive evaluations, and signed execution protocols often makes the difference between success and failure.
What to do:
- Verify that your legal counsel and that you maintain execution records, meeting notes, and planning memos.
- In cases of advanced age or where a you are excluding heirs, be sure that your legal counsel maintains good records and that a professional creates a written “Statement of Capacity and Intent” or other reports documenting mental state and abilities.
- Consider a secure, cloud-based archive for planning records. At UTBF we make one available (without additional cost and as part of your plan).
8. Lack of Coordination Between Estate Plan and Asset Titles/Beneficiaries This is a silent killer of even the most sophisticated estate plans. If your assets are not titled correctly or your beneficiary designations contradict your trust or will, your plan will fail—plain and simple. It’s one of the most common—and most preventable—mistakes we see.
- Review asset titling and beneficiary designations with your estate attorney every five to seven years or sooner if there are significant changes.
- Create a written asset inventory/Personal Financial Statement and update it regularly.
- Coordinate beneficiary forms, TOD designations, and joint ownership of assets with the estate plan.
- Ensure all assets intended to flow through a trust are properly titled in the trust’s name.
9. Including a No Contest Clause – What you need to know Some states, and Pennsylvania is one of them) allow you to include a clause in your will to disinherit a beneficiary under a will or trust if they challenge the will, trust or other aspects of your plan (and if that challenge is unsuccessful).
These clauses are known as “No Contest “ clauses and they can be a deterrent to a challenge. However, the law around the use of these clauses is varied and complicated so be sure to discuss the many variations with your estate planning attorney.
10. Using the “Wrong” approach for the situation While there’s almost never a “right” or “wrong” approach to estate planning but rather a series of options with different pros and cons, certain strategies can be way better than others depending on your personal circumstances and especially if you’re disinheriting a child or grandchild (or simply treating them differently than they might expect).
For example, if a will challenge seems highly likely, we might consider the use of a number of ways of transferring assets outside of the will even if that makes the planning more complicated or expensive.
Think of it this way, while wills can be challenged rather simply, living trusts, funded during life time are much harder to challenge. Hey can be challenged but it is more complicated and often more expensive.
If the use of a will and revocable (and funded) living trust are also combined with the use of beneficiary designations to transfer assets to some heirs while intentionally excluding others it creates a more complicated overall plan, but one that is harder to challenge.
Conclusion: Bulletproofing Your Plan Isn’t Paranoia—It’s Smart Stewardship
Creating a thoughtful estate plan is a wonderful gift.
But keeping it updated, defensible, customized, carefully coordinated with other assets and legally solid is the only way to ensure that your wishes are honored—and your loved ones protected—when it matters most.
Because even the most well-intentioned estate plan can be undone by the passage of time, inattention, and uncoordinated asset ownership, proactive updates and comprehensive coordination are essential to ensure your plan stands when it’s needed most.
The good news?
With the right legal guidance and strategic thinking, you can anticipate and eliminate the most common threats. You can turn your estate plan from a document into more of a fortress.
In short, there are ways to make the success and survival of your planning more likely: careful and regular planning, strategic thinking, documenting your “testamentary capacity” and health issues, as well as training and mentoring of trustees, executors, agents, and trust protectors, attention to coordinating TOD and beneficiary designations with your estate planning documents are often ignored but can mean the difference between a successful and a flawed or failed plan.
If you’d like to explore how we help clients strengthen and protect their plans—and document every critical step along the way—reach out to us for a confidential review.
Because peace of mind isn’t just about having a plan. It’s about knowing that your plan will stand the test of time, scrutiny, and challenge.
If any of the following are true, call for a strategic review:
- Your estate is over $5 million dollars (including any and all assets and life insurance) if you’re single or over $10 million dollars if married,
- There have been changes in your wealth and or family relationships (such as births, deaths, divorces) since your last review
- Your last review was more than five years ago
- The executors, trustees, agents, and/or trust protectors that you nominated are no longer available or appropriate,
- You’ve purchased or already own life insurance policies and your assets exceed $5 million dollars,
- You have a family business, closely held business, or real estate that you want to consider moving to heirs now, rather than at death,
- Your heirs are now older and you wish to start educating them about their trusts, or other roles under your estate plan.
To schedule a telephone, Zoom, or in person review or strategy session, just call 610-933-8069 and speak to one of the friendly and helpful UTBF scheduling team.
