Estate Planning Pitfalls We See in Forest Hills, Flushing, and Bayside
Estate planning isn’t just for the wealthy — it’s for anyone who wants to make sure their loved ones are cared for and their wishes respected. At our Queens estate planning law firm, we regularly meet families from Forest Hills, Flushing, and Bayside who thought their plans were “set” — only to discover costly mistakes after a loved one passed away.
Here are some of the most common estate planning pitfalls we see in these communities — and how to avoid them.
1. Estate Planning Pitfalls – “Do-It-Yourself” Wills That Don’t Hold Up in Court
A Forest Hills family recently came to us after discovering that their late mother’s handwritten will — what’s sometimes called a holographic will — was never properly witnessed. Because it didn’t comply with New York’s formal execution requirements under EPTL § 3-2.1, the Queens Surrogate’s Court treated it as invalid. As a result, her assets were distributed under New York’s intestacy laws, rather than according to her actual wishes.
Under EPTL 3-2.1, a valid New York will must be:
- In writing and signed at the end by the testator (the person making the will),
- Signed or acknowledged by the testator in the presence of at least two witnesses, and
- Witnessed and signed by those two individuals within 30 days of each other, with each witness understanding that the document is the testator’s will.
While New York law does recognize holographic (handwritten and unwitnessed) wills, they are only valid in extremely limited situations — typically for active-duty members of the armed forces or mariners at sea. For everyone else, such wills are not legally enforceable once the person passes away.
Lesson: Even well-intentioned handwritten or online wills can fail if they don’t meet New York’s strict legal standards. To ensure your wishes are honored, have your documents prepared and executed under the supervision of an experienced estate planning attorney familiar with EPTL 3-2.1.
2. Outdated Beneficiary Designations in Flushing
A Flushing couple had carefully drafted a will and trust years ago but never updated their life insurance and IRA beneficiary forms after their divorce. When one spouse passed away, the ex-spouse was still listed as the beneficiary — and initially received the proceeds directly from the financial institution, bypassing the estate entirely.
Under New York Estates, Powers & Trusts Law (EPTL) § 5-1.4, however, a divorce automatically revokes dispositions and beneficiary designations made in favor of a former spouse. This law treats the ex-spouse as if they had predeceased the decedent, unless the designation expressly states that it should remain valid even after divorce.
Unfortunately, many financial institutions are unaware of this rule or pay out too quickly. When that happens, the estate may need to bring a turnover proceeding in the Surrogate’s Court to recover the funds. In such a proceeding — often brought under SCPA § 2103 — the executor or administrator petitions the court to compel the ex-spouse (or any other improper recipient) to return the funds to the estate.
Lesson: Even though New York law provides some protection after divorce, it’s best not to rely on automatic revocation. Always review and update your beneficiary designations on life insurance policies, retirement accounts, and payable-on-death (POD) accounts as soon as there’s a major life change. Proactive updates are far less stressful — and far less costly — than litigation to reclaim funds later.
3. Estate Planning Pitfalls – Joint Accounts Gone Wrong in Bayside
In Bayside, we often see aging parents add one child to a bank account “for convenience” — so that someone can help pay bills or access funds in an emergency. Unfortunately, many families don’t realize that under New York Banking Law § 675, this simple act can have serious consequences. To avoid these Estate Planning Pitfalls, consider the import of joint and convenience accounts.
When an account is opened in joint form, meaning it names two or more people as joint tenants “with right of survivorship,” the law presumes that each owner has an equal present interest in the account and that the surviving owner becomes the sole owner after one person dies. That means if a parent and one child are named on the account, the surviving child automatically inherits the full balance — even if the parent intended the money to be divided among all children through a will.
However, not all joint accounts are meant to confer ownership. Some are actually “convenience accounts,” where the parent adds a child simply to assist with financial management. In those cases, the child is acting as an agent, not an owner. The challenge is that unless the account documentation or other clear evidence shows that the account was for convenience only, the presumption of joint ownership controls — often leading to disputes among siblings.
In a recent Queens Surrogate’s Court matter, a Bayside family found themselves in litigation after discovering that one sibling’s name on their late mother’s account made that child the legal owner of over $200,000. The court had to examine the account statements, testimony, and intent of the parent to determine whether the funds were truly meant to pass solely to that child or to all heirs equally.
Lesson: When opening or updating bank accounts, be clear about your intent. If you want someone to help manage your finances without giving them ownership, consider using a power of attorney or a properly drafted trust instead of adding their name to your account. These alternatives avoid confusion and help ensure your estate is distributed according to your wishes.
4. Ignoring Long-Term Care and Medicaid Planning
Queens families are often surprised by how quickly long-term care costs can erode a lifetime of savings. Nursing home care in New York City can easily exceed $15,000 per month, and without advance planning, even families who considered themselves “middle class” can see their assets depleted within a year.
One Flushing resident learned this the hard way. Hoping to “wait and see,” she delayed any planning for Medicaid eligibility until after her health declined. Because she had made significant gifts to relatives within the five-year period before applying, Medicaid imposed a transfer penalty, leaving thousands in unpaid nursing home bills and forcing the sale of her home to cover the costs.
Under New York Social Services Law § 366 and 18 NYCRR § 360-4.4, transfers of assets for less than fair market value within 60 months (five years) of applying for nursing home Medicaid can trigger a period of ineligibility. To avoid this, many families use a Medicaid Asset Protection Trust (MAPT) — sometimes called an irrevocable Medicaid trust — to preserve their home and savings while ensuring future eligibility for benefits.
A properly structured MAPT allows a parent or senior to:
- Transfer ownership of their home or savings into the trust,
- Retain the right to live in the home and receive income from trust assets, and
- Begin the five-year “lookback clock” for Medicaid eligibility.
Once the five-year period expires, those transferred assets are no longer countable for Medicaid purposes. This strategy protects family homes in neighborhoods like Flushing, Bayside, and Forest Hills, where property values are substantial and often represent the family’s primary asset.
Lesson: The best time to plan for long-term care is before you need it. By establishing a Medicaid Asset Protection Trust early — ideally with help from an experienced Queens elder law attorney — families can safeguard their home and savings while still qualifying for essential care when the time comes.
5. Estate Planning Pitfalls -Not Coordinating Real Estate and Estate Plans
With property values rising in neighborhoods like Forest Hills Gardens and Bayside Gables, real estate is often a family’s most valuable asset. Yet many deeds are outdated or lack clear ownership structures. One client’s home passed directly to a sibling named on the deed, excluding other heirs unintentionally.
Lesson: The title on your home should align with your overall estate plan. Review your deed, trust, and will together to ensure consistency.
Takeaway for Queens Families To Avoid Estate Planning Pitfalls
Estate planning is not one-size-fits-all. Each Queens neighborhood — from Flushing’s multi-generational households to Forest Hills’ co-ops — faces unique challenges. Working with a local Queens estate planning attorney who understands both New York law and Queens family dynamics can make all the difference and can help you avoid Estate Planning Pitfalls.
If you live in Forest Hills, Flushing, or Bayside, and want to review your estate plan, contact our office for a consultation. A small investment in proper planning can save your loved ones years of stress and expense.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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