The Scariest Mistake in Estate Planning: Doing Nothing
Around Halloween, people think a lot about what scares them: haunted houses, dark basements, things that go bump in the night. But in my line of work, the scariest thing I see families face isn't any of that. It's what happens when someone never gets around to making a plan at all.
Doing nothing feels safe. It doesn't cost anything, it doesn't require an uncomfortable conversation, and there's no deadline forcing your hand. But doing nothing doesn't mean nothing happens. It means the law decides for you, and the law does not know your family, your wishes, or what you actually wanted.
If You Have Minor Children, This Is the One That Should Worry You Most
If something happens to you and you have not named a guardian for your children, a judge decides who raises them. Not you. Not necessarily the person you would have chosen. It becomes a legal proceeding, and if more than one relative wants that role, it can turn into a genuine custody battle at the worst possible moment for your children, while they are also grieving you.
Money makes this worse, not better. If your children inherit anything, whether from you directly or through life insurance, and there is no trust in place, that inheritance typically ends up in a court-supervised account. Every withdrawal for their care may need court approval. And when your child turns 18, whatever is left is handed to them outright, all at once, with no structure and no guidance, at an age when very few people are ready to manage a large lump sum responsibly. I have seen very well-meaning parents unintentionally set their own children up for this simply by not implementing an estate plan.
If You Become Incapacitated Without a Plan
Without a Power of Attorney or a Healthcare Proxy, your family cannot simply step in and manage things on your behalf, even if everyone agrees on who should do it. They generally have to petition the court for guardianship or conservatorship, which is expensive, slow, and puts a judge, not you, in charge of deciding who gets that authority.
A Stranger Making Decisions About Your Life
Here is the part that genuinely unsettles people once they understand it: the person the court appoints does not have to be a family member at all. If there is no one available who is willing or suitable, or your family can't agree, the court can appoint a professional guardian, someone you have never met, to make decisions about your medical care, your living situation, and your finances.
I wrote about a client I will call Sophie in my book. She was 96, lived alone, and had no family nearby. When she was hospitalized and could no longer safely care for herself, the court appointed me as her Guardian and Conservator, a complete stranger to her at that point. She was furious about losing her independence, and rightly so. When I arranged a tour of assisted living options so she could choose one herself, she tricked the driver into passing by her own home, rolled down the window, and screamed to a neighbor that she had been kidnapped.
Sophie eventually settled in, but her story has stayed with me, because none of it had to happen this way. If she had named someone herself while she still could, even someone outside her family, she would have kept the ability to choose who showed up for her, and maybe she would not have been so distraught.
If You Die Without a Will
Massachusetts law has a default plan for you, and it does not ask what you wanted. Assets pass according to a fixed formula based on your relatives, regardless of your relationships, your wishes, or anyone's actual needs. I have seen estranged relatives inherit while people who were practically family received nothing, simply because the law had no way to know the difference.
The Conflict No One Sees Coming
Families rarely fight over a plan that clearly states what someone wanted. They fight over the absence of one. Without anything in writing, everyone is left guessing, and guesses do not carry the same weight as your actual wishes, especially when siblings disagree.
The MassHealth Exposure
Doing nothing also means no protection has ever been put in place for your assets. If long-term care becomes necessary, without any planning, and without the years the MassHealth lookback period requires, your assets are generally fully exposed and available to be spent down before benefits begin.
None of This Has to Happen
Every one of these outcomes is avoidable, and none of them requires anything complicated to prevent. A will, a nominated guardian for your children, a Power of Attorney, and a Healthcare Proxy address nearly all of it. The scariest mistake in estate planning isn't picking the wrong trust or getting a detail slightly wrong. It's leaving the decision to chance, and to a court that has never met your family.
At Senior Solutions, we believe that Planning + People = Peace of Mind®. This Halloween, let the scares stay in the haunted houses. Your family's future does not have to be one of them.
Senior Solutions, Attorneys at Law, is an Estate Planning and Elder Law firm serving the Greater Boston, Massachusetts area since 2001. We are ready to help you with Medicaid Planning, Estate Planning, Probate, Guardianship & Conservatorships, Special Needs Trusts, and Fiduciary Services. We are here to help. Please call our office at 617-489-5900 or schedule an initial consultation.
Comments