10 Common Estate Planning Mistakes in California — and How to Avoid Them

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1. Failing to Create an Estate Plan at All Without a will or trust, your estate is distributed according to California’s intestate succession laws (Probate Code §6400). This can mean a long probate process and assets passing to biological relatives — even if estranged — instead of your chosen family. Real-World Example: David passed away without a will. His long-time partner received nothing, and distant relatives inherited everything. Solution: Create a foundational estate plan including a will, trust, power of attorney, and healthcare directive — even if you’re young or don’t own much yet.
2. Not Using a Revocable Living Trust for Real Property If you own real estate in California and don’t place it in a trust, it will go through probate — a costly and time-consuming process. Legal Reference: Probate Code §13000 et seq. Solution: Use a revocable living trust to hold title to real estate and other significant assets. This bypasses probate and ensures privacy and efficiency.
3. Forgetting to Fund the Trust A trust with no assets in it doesn’t avoid probate. This mistake is surprisingly common. Real-World Example: A couple paid to create a trust but forgot to retitle their home. Their estate still went to probate court. Solution: Retitle real estate, bank accounts, and investment assets into the name of the trust. Update beneficiary designations where needed.
4. Not Naming Back-Up Fiduciaries If your executor, trustee, or healthcare agent can’t serve and you didn’t name an alternate, the court will choose someone. Solution: Always name one or two alternates for each fiduciary role. Revisit choices every few years.
5. Relying Only on a Will for Incapacity Planning A will only goes into effect upon death. If you become incapacitated, a court may have to appoint a conservator. Legal Reference: Probate Code §4600 et seq. Solution: Create a durable power of attorney and an advance health care directive to ensure someone you trust can manage your affairs.
6. Not Updating Your Plan After Major Life Changes Estate plans become outdated. A new marriage, divorce, child, or financial shift may render your old plan ineffective or harmful. Real-World Example: Maria divorced but forgot to change her beneficiary designations. Her ex-spouse inherited her life insurance. Solution: Review your estate plan after every major life event — or at least every 3–5 years.
7. Assuming Marriage Alone Protects Your Spouse or Partner While California law protects spouses, property not titled correctly or with unclear beneficiaries can still cause probate complications. Special Note for LGBTQ+ Couples: Unmarried partners have no default inheritance rights under California law. Solution: Use a trust, beneficiary designations, and legal documents to confirm your intent, regardless of marital status.
8. Overlooking Digital Assets Without clear instructions, your digital life (emails, crypto, cloud files, social media) may become inaccessible or mismanaged. Solution: Create a digital assets memorandum. Include passwords and instructions in a secure, legally valid format.
9. Using Incomplete or Generic Online Forms Boilerplate templates may not comply with California law or reflect your unique family or asset structure. Real-World Example: A DIY will excluded one child unintentionally due to confusing wording, sparking litigation. Solution: Work with an attorney familiar with California estate law and your personal circumstances.
10. Failing to Review Your Plan Regularly Even a perfect plan at the time of signing may no longer fit years later. Tip: Tax laws change. So do relationships, asset levels, and state statutes. Solution: Schedule regular check-ins with your attorney — Kushner Legal offers complimentary 3-year reviews for clients.

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Not Planning for Digital Privacy or Identity Mismanagement of your digital accounts or transgender identity records may expose sensitive information or erase important history. Solution: Include a digital directive and letter of instruction about how you want your identity and data preserved or deleted.

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