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January 13, 2021

Published in All About Seniors Winter/Spring 2021 Upstate Edition

By:  Brandon Elijah, managing partner  Burroughs Elijah Attorneys

  1. Failure to Plan for Death: Without a Last Will and Testament or Living Trust, state law dictates how your estate will be divided upon death.  In most states, a surviving spouse is only entitled to a portion of a deceased spouse’s estate if the decedent is also survived by children, even if they are adults.  A valid Last Will and Testament or Living Trust enables you to draft around the statutory defaults and specify how your property will be divided upon death.
  2. Failure to Plan for Incapacity: If you become incapacitated and don’t have a Durable Power of Attorney and Health Care Power of Attorney in place, your loved ones will likely need to petition the Probate Court to appoint a Guardian and/or Conservator.  This process is complicated, expensive, and creates a breeding ground for family conflict.  A well-drafted Durable Property Power of Attorney and Health Care Power of Attorney can save you and your family the headache and expense that comes with the Guardianship and Conservatorship processes.


  1. Failure to Review Your Documents: An outdated estate plan may sometimes be worse than no estate plan at all. Life tends to become more complicated as you age. Health, family dynamics, and assets change over time, often necessitating a change in your estate plan.  It is advisable to review your estate plan with an Attorney at least once every five years.


  1. Failure to Update Your Beneficiary Designations: The failure to incorporate beneficiary designations into an estate plan is a common, and often costly, mistake that can easily be avoided.  It is important to execute beneficiary designations with a beneficiary’s particular needs in mind.  For example, it may be advantageous to name a stand-alone retirement trust as a beneficiary (rather than a child) on a retirement account when there is concern about drug addiction, frivolous spending, or creditors.  It is also vital to review beneficiary designations after a significant life change, including birth, death, adoption, or divorce.


  1. Failure to Hire an Attorney: It may be tempting to create your own estate planning documents to try and save a few bucks.  Unfortunately, a form completed online or purchased at a local office supply store can’t provide the guidance of an experienced attorney.  Paying a competent estate planning Attorney to draft your documents now will protect your family from the risk of cleaning up a big mess upon your death and facing hefty legal bills down the road.


  1. Failure to Address Your Specific Needs: Would you use a hammer to drive in a screw?  Your estate plan is a tool that should be custom-tailored for your specific needs, both now and in the future.  Your plan should also address the specific needs of your beneficiaries, including disability, drug or alcohol dependency issues, money management issues, and complicated marriages.


  1. Failure to Communicate: All too often, documents are executed and fiduciaries (i.e. executors, trustees, agents under power of attorney) are nominated but not notified.  It is critical to discuss your health care wishes, financial management concerns, and living arrangements with your fiduciaries as early as possible to avoid a situation where decisions must be made under duress.  You should also make sure that your fiduciaries know where all of your estate planning documents are located and can access them.

Brandon Elijah is the managing partner of Burroughs Elijah Attorneys.  Brandon practices exclusively in the areas of wills and trusts, VA and Medicaid planning, probate, special needs planning, and small business law. He is an active member of the Georgia and South Carolina Bar Associations, and the American Bar Association and  is an accredited attorney with the Department of Veterans Affairs.   864-501-3205

Brandon Elijah