Avoid These Common Estate Planning Mistakes After Age 65

Approaching or reaching retirement age is an exciting milestone, but it also comes with new responsibilities, especially when it comes to estate planning. For older adults and their families, this phase of life often requires reevaluating financial goals, planning for long-term care, and ensuring that legal documents reflect current wishes and needs.

Yet far too many seniors make avoidable mistakes — some of which can result in lost assets, family conflict, or court intervention. Here are some of the most common estate planning errors people make after age 65 and how to avoid them with thoughtful legal guidance.

1. Failing to Update Existing Estate Planning Documents

One of the most common mistakes is assuming that an estate plan created years (or even decades) ago still fits your current situation. In reality, life changes — such as retirement, family dynamics, relocation, or changes in health — often require a thorough review and update of your estate documents.

Documents to review include:

• Last Will and Testament
• Revocable Living Trusts
• Powers of Attorney (property and healthcare)
• Living Wills
• HIPAA
• Beneficiary designations on life insurance and retirement accounts

An outdated plan may no longer reflect your wishes or comply with state law. Worse, it could name an executor, trustee, or agent who is no longer capable or willing to serve.

2. Not Naming Successor Decision-Makers

Incapacity planning is a key part of any estate plan, especially later in life. While most people name a spouse or adult child as their primary agent, it’s critical to name at least one or two backup agents in your durable power of attorney for healthcare.

Why this matters:

• Your primary agent may become ill, die, or be unavailable
• Courts may need to appoint a guardian if no valid agent is named
• Financial institutions or healthcare providers may refuse to accept old or incomplete documents

Working with an elder law attorney ensures that your powers of attorney and other documents name alternates, are legally compliant, and are honored when needed.

3. Overlooking the Medicaid Look-Back Period

Many older adults eventually need long-term care — whether in-home, assisted living, or a nursing home. Unfortunately, this level of care is extremely expensive, and Medicare does not cover it beyond a short rehabilitation period.

Medicaid does help with long-term care costs, but eligibility is income and asset-based. There is a 5-year “look-back” period in most states, during which asset transfers or gifts may result in penalties or delays in coverage.

Common mistakes include:

• Gifting money or property to children too late
• Adding a child to a home deed without legal advice
• Transferring assets without using a Medicaid-compliant trust

Instead, start early. Long-term care planning should ideally begin five or more years before care is needed. Strategic use of irrevocable trusts and spousal planning tools can preserve assets while still meeting Medicaid eligibility rules.

4. Assuming a Will Avoids Probate

Many seniors mistakenly believe that simply having a will avoids the probate process. In reality, a will only takes effect after death and must be filed with the probate court to be legally executed. This process can be time-consuming, public, and costly.

To truly avoid probate, you may need to consider:

• Creating a revocable living trust to hold and manage your assets
• Using transfer-on-death Instrument (TODI) or payable-on-death (POD) designations for certain accounts
• Joint ownership with rights of survivorship (though this comes with risks)

An elder law attorney can review your assets, titles, and documents to ensure that your estate is set up to transfer efficiently — and privately — without court involvement when possible.

5. Not Planning for Incapacity

Estate planning is not just about what happens after you pass away — it’s also about protecting you while you’re still alive. As we age, the risk of cognitive decline, illness, or accidents increases. Without proper documents in place, family members may be forced to petition the court for guardianship or conservatorship.

To avoid this:

• Create a durable Power of Attorney for Property so that someone you trust can manage your finances
• Execute a Power of Attorney for Healthcare so your chosen person can make medical decisions
• Include a HIPAA release so doctors can share health information with family or agents
• Consider including a Living Will to express your preferences regarding end-of-life care

Incapacity can be sudden — don’t wait until it’s too late to plan.

Bottom Line: Review Your Estate Plan at Least Every 3 to 5 Years

Estate planning is not a one-time event. After age 65, it’s more important than ever to review your plan regularly with an attorney who understands both elder law and estate planning. The law changes. Your health changes. Your family situation may change.

Working with a trusted elder law attorney helps ensure your wishes are honored, your assets are protected, and your loved ones are spared unnecessary stress or court involvement. A well-crafted plan brings peace of mind — now and in the future.

Contact a certified elder law attorney(*), such as Linda Strohschein and her team at Strohschein Law Group for assistance. To set up an appointment, contact Strohschein Law Group at 630-300-0627.