We’re excited to welcome Attorney Michael Monteforte, Jr., as our guest contributor! As the founder of Monteforte Law, P.C., Michael has dedicated his career to helping individuals and families navigate estate planning, elder law, and wealth preservation. With years of experience and a deep understanding of complex legal matters, he’s a trusted expert in his field.
In today’s post, Michael highlights some of the most common estate planning mistakes he’s seen—and, more importantly, how you can avoid them. Whether you’re just starting your estate plan or updating an existing one, his insights will help you make informed decisions and safeguard your family’s future.
Let’s dive in! Here’s Attorney Michael Monteforte, Jr., with expert advice on avoiding estate planning pitfalls.
Guest written by Attorney Michael Monteforte, Jr.
Owner & CEO of Monteforte Law, P.C.
Estate Planning Mistakes as Big as a Mardi Gras Float
Imagine this…
You did your research and found an estate planning attorney that was a perfect fit. The attorney had glowing reviews and years of experience. After your consultation, you felt confident that your plan was done right.
You paid a good-sized fee, but the peace of mind was worth it. Your estate plan covered everything:
✅ A Last Will to direct where your property will go.
✅ A Durable Power of Attorney (POA) naming someone to handle financial decisions.
✅ A Health Care Proxy (HCP) giving someone the ability to make medical decisions.
✅ A Family Trust to protect your assets and space out your children’s inheritance.
You walked out of your lawyer’s office feeling like the King of Bacchus, ready to throw beads to the crowd in celebration. You finally got it done! Laissez les bons temps rouler, right?
So, you toss your estate plan into a lockbox, maybe stash it under the beignets in the back of the pantry, and you never think about it again.
Time ticks by. Years turn into decades. You never review the plan and never contact your attorney again.
But that is okay, right? Estate planning is a one-and-done deal, isn’t it?
Wrong. Not Even Close.
An outdated estate plan can be worse than no plan at all.
Let me tell you a story about a client who learned this the hard way—a man who thought he was covered, until everything went wrong.
THE STORY OF AN ESTATE PLAN THAT DIDN’T SURVIVE THE PARADE ROUTE
Let’s call him John.
John created his estate plan at age 30 when he was newly married. At the time, he had no kids, little savings, and a simple financial picture. His estate plan was straightforward.
Then life happened.
✅ He had three children.
✅ He divorced, remarried, and had a fourth child.
✅ He bought a home in the Garden District and climbed the career ladder, earning a great salary.
✅ He never updated his estate plan.
Fast forward 30 years. John was 60 years old, with a healthy retirement fund and plans for the future. Then, the unthinkable happened.
A massive stroke left him unable to make decisions for himself. His family scrambled to figure out what to do, only to discover that his estate plan was as outdated as a King Cake in July.
And that is when the real disaster started.
The Estate Plan Disaster That No One Saw Coming
1. His Financial Power of Attorney Was Useless
John thought he was covered because he had a Power of Attorney (POA) in place. But here’s what no one told him: many banks won’t accept a POA that’s more than a few years old.
When his stroke left him incapacitated, his wife had been his POA, and he never replaced her with someone else after divorce, so now there was no one to take action. Worse, his wife, trying to help, went to the bank to try to access his accounts and handle bills—only to be told that, even had he updated the POA to put her name, it was too old and they wouldn’t honor it anyway.
She was forced to go to court to obtain guardianship, a process that took months and cost thousands in legal fees. Meanwhile, bills went unpaid, financial accounts were frozen, and the stress piled up on the family.
Had John updated his POA every few years, he would have avoided this mess. Instead, his family was stuck in legal limbo at the worst possible time.
2. His Will Did Not Include His Youngest Child
His Will only named his three older children. His youngest child, from his second marriage, was not even mentioned.
His ex-wife argued, “If he wanted the youngest child in the Will, he would have added her.” The court agreed. His youngest child was cut out completely.
3. His Family Was Headed to War
His first wife and his current wife hated each other. Now, they were fighting over his assets, dragging his children into the battle.
Hundreds of thousands of dollars were wasted on attorneys. The only winners were the lawyers.
4. The Government Took a Huge Cut
When John made his estate plan, he had no estate tax concerns—he was not making enough money for it to matter.
Thirty years later, he had a significant estate, and his old plan offered zero estate tax protection. As a result, his heirs lost hundreds of thousands of dollars in unnecessary taxes.
5. Medicaid Took His Home
After his stroke, John needed long-term care. He assumed his home was protected. It was not.
Since his estate plan never included Medicaid planning, a Medicaid lien was placed on his house to cover nursing home costs. His family was forced to sell it just to pay the bills.
All of this could have been avoided—if he had updated his estate plan.
The Biggest Myths About Estate Planning
If you think your estate plan is “good enough”, you might be making one of these mistakes:
❌ “I have a Will, so I’m covered.”
A Will does NOT avoid probate. It just gives instructions for what happens when you die. Your family will still have to go through the court process.
❌ “I don’t have enough assets to need a Trust.”
Trusts are not just for the rich! They protect your home, your savings, and your family from long-term care costs, lawsuits, and taxes. Not sure how a Trust compares to a Will? Check out this blog to learn the key differences and why having both is essential.
❌ “I set up my estate plan years ago, so I don’t need to change it.”
If your plan is older than a jazz record at Preservation Hall, it’s time for an update. Laws change. Your life changes. Your plan should change too.
The Power of a Legacy Estate Plan
Think of a Legacy Plan like getting your brakes checked before a second-line parade—you do not wait until you crash to make sure everything works.
A Legacy Plan includes:
✅ Annual reviews of your estate plan
✅ Updates based on new laws and tax rules
✅ Protection for new assets and beneficiaries
✅ Long-term care and Medicaid planning
✅ Ongoing attorney access for legal questions
Take Action Before It’s Too Late!
If you already have a plan, review it now. If you do not have one, get started immediately.
Yes, updating your plan costs money—but it is a fraction of what your family will lose if your plan fails.
The biggest estate planning mistake? Thinking you’re done. Estate planning is not a one-time event—it is a lifelong process.
Do not wait until it is too late. Update your plan today.
Louisiana-Specific Estate Planning Mistakes That Catch Families Off Guard
Louisiana’s forced heirship rules catch many families completely off guard — a parent who writes a will disinheriting a qualifying forced heir has not made a legally binding decision, because the forced heir retains the constitutional right to demand their protected portion regardless of what the will says. Forced heirship is a unique feature of Louisiana’s Civil Code tradition, rooted in French and Spanish legal heritage, and it has no equivalent in any other U.S. state. Under Louisiana law, children who are 23 years of age or younger, or children of any age who are permanently incapable of caring for themselves, are entitled to a “forced portion” of the parent’s estate — a share that the parent cannot defeat through a will, a trust, or any other testamentary device. Families who move to Louisiana from other states, and even many Louisiana-born families, routinely make the mistake of believing a will controls everything. When a forced heir later demands their protected share, the legal challenge can be costly, time-consuming, and deeply damaging to family relationships.
Louisiana community property rules confuse nearly every family that has lived in both community property and common law states — and many Louisiana families as well — because the community regime fundamentally determines which assets are even in the estate to begin with. Under Louisiana’s community property system, property acquired during the marriage through the labor of either spouse belongs equally to both spouses, regardless of whose name appears on the title. This means that when one spouse dies, only that spouse’s one-half interest in the community property is part of the decedent’s estate. The surviving spouse already owns the other half and it passes to them automatically. Estate planning that ignores this framework — for example, a will that purports to leave “all my property” to the decedent’s children from a prior marriage — may inadvertently attempt to disinherit the surviving spouse of property the surviving spouse already legally owns, setting up a dispute that the estate plan was meant to prevent.
Failing to plan for usufruct is a third Louisiana-specific mistake that creates significant complications. When a Louisiana resident dies without addressing usufruct in their will, the Civil Code imposes a legal usufruct on the surviving spouse over the deceased spouse’s share of community property that passes to descendants. This means the surviving spouse has the right to use and enjoy that property during their lifetime, but the children own the naked title and will receive full ownership when the usufruct terminates. Many families misunderstand this arrangement entirely. Children who inherit naked ownership cannot sell or mortgage the property without the usufructuary’s consent, and the usufructuary has obligations to preserve the property for the naked owners. These rights and obligations can create serious conflicts, particularly in blended families or when the surviving spouse and the children from a prior relationship have different interests.
Using an estate plan drafted in another state is a fourth mistake that has serious consequences in Louisiana. Louisiana’s Civil Code is fundamentally different from the common law system used in every other U.S. state, and estate planning documents drafted under common law principles often do not translate cleanly into the Louisiana legal framework. Powers of attorney, trusts, and wills drafted in other states may not comply with Louisiana’s formal requirements for execution, may reference legal concepts that do not exist under Louisiana law, or may attempt to accomplish results that Louisiana law does not permit. An out-of-state power of attorney, for example, may be rejected by Louisiana financial institutions if it does not meet Louisiana’s requirements for notarization and witnessing. Families who relocate to Louisiana and do not revise their estate plans to comply with Louisiana law are leaving themselves exposed to exactly the kind of complications that estate planning is designed to prevent.
The fifth Louisiana-specific mistake is treating a Louisiana succession as though it works like common-law state probate. In common-law states, probate courts supervise estate administration under a statutory framework that, while cumbersome, follows familiar principles. Louisiana succession law follows the Civil Code tradition and involves different terminology, different procedures, different rules about who can serve as succession representative, and different requirements for how property transfers are documented and recorded. Families with assets in multiple states often make this mistake when Louisiana property is involved, assuming that the probate proceeding in their home state will handle everything. It will not. Louisiana succession requires a separate Louisiana court proceeding for Louisiana real property, regardless of what happens in other jurisdictions, and applying out-of-state assumptions to that proceeding leads to errors that can delay the succession and create title defects that complicate future transactions.
Titling, Beneficiary Designation, and Asset Coordination Mistakes
Failing to update beneficiary designations after a major life event is one of the most consequential and most common estate planning mistakes. Life insurance policies, retirement accounts, IRAs, 401(k)s, and payable-on-death bank accounts all pass directly to the named beneficiary regardless of what a will says. The will has no power to override a beneficiary designation. A person who divorces, remarries, has additional children, or loses a named beneficiary to death, and who fails to update their beneficiary designations accordingly, risks having assets pass to an unintended recipient — or to no one at all, if the named beneficiary predeceased and no contingent beneficiary was named. Courts regularly see situations where a former spouse receives life insurance proceeds years after a divorce simply because the policyholder never updated the form. Louisiana law does not automatically revoke beneficiary designations upon divorce for all types of accounts, making this an active task that requires attention.
Naming a minor child as a direct beneficiary of a life insurance policy or retirement account, without a trust or custodianship arrangement in place, creates an entirely predictable problem. Louisiana law does not allow minors to directly receive significant sums of money. If a minor is named as a direct beneficiary and no trust or custodial arrangement is specified, the court must appoint a tutor to manage the funds on the minor’s behalf. This tutorship proceeding requires a court filing, judicial approval, annual accountings to the court, and court supervision of every significant expenditure until the minor reaches the age of majority. The costs and delays associated with a tutorship are entirely avoidable with proper planning — a trust or a custodial account under the Louisiana Uniform Transfers to Minors Act can receive the funds and administer them for the child’s benefit without court involvement.
Jointly titling property with a child “for convenience” is a frequently misunderstood planning technique that carries substantial risks. Many parents add a child’s name to a bank account or piece of real estate simply to make it easier for the child to help manage the parent’s affairs, intending the arrangement to be informal and temporary. Louisiana law, however, treats jointly titled property as owned by all named owners with immediate effect. Adding a child’s name to real estate creates a present ownership interest that is subject to the child’s creditors, the child’s ex-spouse in a divorce proceeding, and any claims against the child arising from the child’s personal liabilities. The parent may also have made a taxable gift by transferring a partial ownership interest without consideration, depending on the asset’s value. What was meant as a practical convenience can expose a family’s home or savings to risks the parent never contemplated.
Succession is required even when there is a valid will, even when all heirs agree, and even when the estate is modest — one of the most persistent Louisiana estate planning mistakes is the belief that a well-drafted will somehow avoids or shortens the succession proceeding, when in reality succession is mandatory for all real property regardless. A will tells the court who should receive the property; it does not transfer the property itself. Only the succession court proceeding, resulting in a recorded Judgment of Possession, legally accomplishes that transfer. Families who believe their carefully prepared will has eliminated the need for succession often discover, when it is time to sell or mortgage the inherited property, that the title is not clear and a succession must still be opened, sometimes years after the death. The costs and complications of a delayed succession are typically far greater than the costs of a timely one.
A Judgment of Possession that is not recorded in every parish where the decedent owned real property leaves an unresolved title defect on each unrecorded property — a mistake that can take years and significant expense to fix if discovered by a buyer’s title examiner long after the succession is otherwise closed. Louisiana law requires the Judgment of Possession to be recorded in the conveyance records of the parish where each piece of real property is located. If a decedent owned property in three parishes and the Judgment of Possession is recorded in only one, the title to the properties in the other two parishes remains defective from the succession’s perspective. This problem often surfaces years later, when a family member attempts to sell or finance a property and a title examiner discovers the gap. Correcting an unrecorded Judgment of Possession typically requires additional legal proceedings and may be further complicated if the heirs have since moved, become incapacitated, or died themselves.
Failing to Plan for Incapacity: The Estate Planning Mistake Most People Don’t See Coming
Most people think of estate planning as planning for death — and they neglect entirely to plan for incapacity. The failure to execute a durable power of attorney is one of the most serious gaps in any Louisiana estate plan. A durable power of attorney designates someone to manage the principal’s financial affairs if the principal becomes unable to do so. Without one, a family member who needs to pay bills, manage investments, file tax returns, or handle any financial matter on behalf of an incapacitated loved one has no legal authority to do so. The only alternative is a court-supervised interdiction proceeding, in which a judge appoints a curator to manage the incapacitated person’s affairs. Interdiction proceedings are expensive, time-consuming, and emotionally difficult — and they result in a level of ongoing court oversight that a simple power of attorney would have entirely avoided.
A healthcare power of attorney — also called a medical power of attorney or healthcare proxy — designates someone to make medical decisions for the principal if the principal cannot make or communicate those decisions themselves. Without one, healthcare providers will look to the family for decision-making authority, but “the family” may disagree, and hospitals and physicians follow a statutory hierarchy that may not reflect the patient’s actual wishes about who should be in charge. When family members have different views about the appropriate course of medical treatment, disputes can become serious — and in some cases the only resolution is a court proceeding to appoint a curator, with all of the costs and delays that entails. A healthcare power of attorney eliminates the ambiguity by clearly designating the decision-maker in advance, while the principal still has the legal capacity to make that choice.
A living will — also called an advance directive or declaration concerning life-sustaining procedures — is a written statement of the principal’s wishes regarding end-of-life medical treatment. Without a living will, the family is left to make extraordinarily difficult decisions about whether to continue or withdraw life-sustaining treatment without any direct guidance from the patient. These decisions carry enormous emotional weight, and family members may have very different views about what the patient would have wanted. The absence of a living will forces families to make these decisions in crisis, often in a hospital or ICU setting, without time to deliberate carefully. A clear, properly executed advance directive removes this burden from the family and ensures that the patient’s own values and wishes govern end-of-life care.
Many married couples rely on an implicit assumption: if something happens to me, my spouse will handle everything. This assumption fails in two common scenarios. First, both spouses may be incapacitated simultaneously — in a car accident, during a shared illness, or as both age and decline together. Without individual powers of attorney designating a backup decision-maker, the family may face simultaneous incapacity with no one authorized to act for either spouse. Second, the spouse who is designated as the primary agent in a power of attorney may die first or may become incapacitated before the principal, leaving the power of attorney without a functioning agent. Comprehensive incapacity planning designates both a primary and a successor agent for both financial and healthcare decisions, ensuring that there is always someone with clear legal authority to act.
Perhaps the most critical timing issue in incapacity planning is this: a power of attorney must be executed while the principal still has legal capacity. Once a person has lost the mental capacity to understand and consent to a legal document, they can no longer validly sign a power of attorney, a healthcare directive, or any other planning document. This seems obvious when stated directly, but it is a constraint that is frequently ignored in practice. Families often reach out to estate planning attorneys only after a loved one has already suffered a stroke, developed advanced dementia, or otherwise lost capacity — at which point the planning window has closed entirely and the only remaining option is a court-supervised interdiction. The lesson is straightforward: incapacity planning must be done while the principal is still well, not after a health crisis has already occurred.