Checklist · Wills and Estates

Building and Maintaining an Estate Plan: A Practical Checklist

29 U.S.C. § 1055

Type
Checklist
Jurisdiction
National
Date
2025-11-26
Topic
Wills and Estates

This checklist builds an estate plan in the order that prevents the common failures. It starts with an asset inventory organized by transfer mechanism, because until assets are sorted into probate and non-probate buckets no drafting decision can be made intelligently. The second phase is the beneficiary designation audit, which is the highest-value hour available in personal planning and the one most often skipped. Later phases cover fiduciary selection, will drafting and execution formalities, revocable trust decisions, and the funding work that determines whether a trust does anything at all. Separate phases handle incapacity documents, planning for minors and beneficiaries with disabilities, tax checkpoints including the portability return that is routinely missed, and document storage. A maintenance phase lists the review triggers, and a closing section lists the fifteen failures that recur in practice.

Building and Maintaining an Estate Plan: A Practical Checklist

Wills and Estates > Trusts and Estate Planning | Published 26 November 2025 - Updated 22 July 2026 | UpLaw - uplaw.us

⭐ Do Phase 2 first if you do nothing else. Reading every beneficiary designation you have takes an afternoon and fixes more broken estate plans than any document ever drafted.

Use with Trusts and Estate Planning: A Comprehensive Guide to Wills, Revocable Trusts, Beneficiaries, and Funding and The Estate Planning and Trust Funding Toolkit.

Phase 1 — Inventory, sorted by how it transfers

⭐ Sort every asset into one of four buckets. This determines everything else.

Bucket 1 — By contract (beneficiary form controls) ☐ 401(k), 403(b), 457, and every plan from a former employer ☐ Traditional and Roth IRAs, SEP and SIMPLE IRAs ☐ Pensions with survivor options ☐ Life insurance — individual and employer-provided ☐ Annuities ☐ Health savings accounts ☐ 529 plans ☐ Payable-on-death bank accounts ☐ Transfer-on-death brokerage accounts

Bucket 2 — By title (survivorship controls) ☐ Joint tenancy with right of survivorship ☐ Tenancy by the entirety ☐ Community property with right of survivorship ☐ ⚠ Note anything held as tenants in common — that share does pass by will

Bucket 3 — By trust ☐ Assets actually retitled into a trust — ⚠ actually, not intended

Bucket 4 — Probate ☐ Everything else: solely titled accounts and property, tangible personal property, vehicles, business interests, receivables, and anything a designation missed

☐ Record for each item: description · approximate value · exact title as it reads on the document · beneficiary named · debt against it · original cost basis where known · location of the paperwork.

Phase 2 — The beneficiary designation audit

⭐ The highest-value hour in personal estate planning.

☐ Request a current beneficiary statement from every custodian. ⚠ Do not rely on memory or on a copy in your files — ask the custodian what they have on record today.

☐ For each account confirm:

  • ☐ Primary beneficiary is the person you want
  • ☐ Contingent beneficiary is named
  • ☐ Percentages, not dollar amounts
  • ☐ Per stirpes treatment is specified where the form allows — ⚠ many forms default to per capita, disinheriting a deceased child's children
  • ☐ ⚠ No minor is named directly — that produces a guardianship of the estate
  • ☐ ⚠ No one on means-tested benefits is named directly — that terminates eligibility
  • ☐ ⚠ "My estate" is not named unless there is a specific reason

☐ ⚠ Divorce does not automatically fix ERISA plans. Egelhoff v. Egelhoff, 532 U.S. 141, preempted a state revocation-on-divorce statute; Kennedy v. Plan Administrator, 555 U.S. 285, required payment to a named ex-spouse despite her decree waiver. ⭐ Change the form.

☐ If married, confirm spousal consent where a qualified plan beneficiary other than the spouse is named — 29 U.S.C. § 1055. ⚠ A prenuptial agreement cannot supply this consent; the signer was not yet a spouse. Re-execute after the wedding.

☐ Analyze retirement accounts under the SECURE Act rules before naming a trust — most non-spouse beneficiaries face a ten-year payout, and pre-Act trust language often produces the worst result.

☐ ⭐ Obtain written confirmation of every change and keep it with the plan.

Phase 3 — Choosing the people

☐ Personal representative / executor — organized, patient, able to say no. ⭐ Not chosen by birth order. ☐ Successor personal representative. ☐ Trustee — ⚠ for a trust lasting decades, consider a corporate or professional trustee, or a co-trustee. ☐ Successor trustee(s). ☐ Financial agent under the power of attorney — ⚠ unlimited practical access to your money the day you sign. ⭐ Name someone whose integrity you would bet your house on, because that is the bet. ☐ Successor agents, at least two. ☐ Health care agent — ⭐ the person who will do what you asked, not the person who loves you most. ☐ Guardian for minor children, and a successor. ☐ Trustee of the children's funds — ⭐ consider separating this from the guardian. ☐ ⚠ Ask every nominee in advance. A fiduciary who learns of the appointment at the funeral frequently declines. ☐ Address compensation in the instrument. ☐ Consider requiring periodic accountings where the risk is real — see Detecting, Reporting, and Unwinding Elder Financial Exploitation: A Practical Checklist.

Phase 4 — The will

☐ Residuary clause — ⚠ its absence is the most common drafting defect and produces partial intestacy. ☐ Contingent beneficiaries at every level, ending with a final taker. ☐ Per stirpes or per capita, stated expressly. ☐ Survivorship clause — commonly 30 to 120 days. ☐ Guardian nomination for minor children, with a successor. ☐ Testamentary trust for minors or a beneficiary who should not receive outright. ☐ Executor nomination, with bond waived and broad powers granted. ☐ Tangible personal property memorandum, referenced in the will and amendable without re-execution. ⭐ Write it. The ring and the photographs cause more family damage than the money. ☐ Direction on taxes and debts — which assets bear them. ☐ Digital asset authority consistent with the state's RUFADAA analogue. ☐ Disinheritance stated expressly by name if intended — ⚠ silence looks like a mistake and invites a contest. ☐ No-contest clause where enforceable, ⭐ paired with a bequest large enough to make a challenge costly.

Execution: ☐ Two disinterested witnesses — ⚠ never a beneficiary. ☐ Self-proving affidavit, notarized. ☐ Sign in the lawyer's office where possible. ☐ ⚠ Exclude any influential beneficiary from the signing entirely. ☐ Document capacity contemporaneously; consider a physician's letter for an elderly or ill client. ☐ Do not staple, unstaple, mark, or annotate the original afterward.

Phase 5 — Trust decision and funding

Decide whether a trust is warranted: ☐ Real property in more than one state — ⭐ the strongest single reason ☐ A state with percentage-based probate fees ☐ A need for privacy ☐ A beneficiary needing staged or supervised distributions ☐ A meaningful risk of incapacity administration ☐ ⚠ Otherwise, a well-drafted will with correct designations may be entirely sufficient — a trust is not automatically better

If a trust is used, FUND IT: ☐ Deed real property into the trust; confirm title insurance, the due-on-sale analysis, and that the homestead exemption survives in the state ☐ Retitle bank accounts, or use POD to the trust ☐ Retitle brokerage accounts ☐ Assign business interests — ⚠ check every transfer restriction first ☐ Assign tangible personal property by general assignment ☐ Name the trust as life insurance beneficiary where appropriate ☐ ⚠ DO NOT retitle retirement accounts — that is a taxable distribution. Beneficiary designation only. ☐ Execute a pour-over will for anything missed ☐ Prepare a certification of trust for institutions ☐ ⭐ Confirm every retitling in writing and keep the confirmations. ⚠ An unfunded trust is an expensive folder.

Phase 6 — Incapacity documents

☐ Durable financial power of attorney:

  • ☐ Durable language — ⚠ a non-durable instrument fails exactly when needed
  • ☐ ⭐ Immediate rather than springing, unless there is a strong reason
  • ☐ Express "hot" powers: gifting · creating, amending, or revoking trusts · changing beneficiary designations · changing survivorship rights · disclaiming · delegating
  • ☐ Successor agents named
  • ☐ Whether co-agents act jointly or independently
  • ☐ ⭐ Also sign each financial institution's own form ☐ Health care proxy / medical power of attorney, with successors ☐ Living will / advance directive ☐ HIPAA authorization under 45 C.F.R. Part 164, naming ⭐ several people ☐ POLST or MOLST for a seriously ill client — ⚠ a clinician's order, different in kind from a directive ☐ Disposition of remains and anatomical gift instructions — ⚠ separate statute, separate priority list; a will read after the funeral is useless ☐ Standby guardian / conservator nomination as a backstop ☐ ⭐ Deliver copies to every person named, and to the primary physician. A document nobody has is a document that does not exist.

Phase 7 — Minors and beneficiaries who need protection

☐ ⚠ Never leave property outright to a minor. It produces a court-supervised guardianship of the estate with annual accountings and a bond, and the child receives everything at eighteen. ☐ Create a trust — testamentary or within the revocable trust — with distributions for health, education, maintenance, and support, and principal at staged ages. ☐ Consider a Uniform Transfers to Minors Act custodianship for smaller amounts, ⚠ noting it also terminates at a statutory age. ☐ Name the trust, not the child, on every beneficiary form.

☐ ⭐ If any beneficiary receives SSI or Medicaid, use a third-party special needs trust.

☐ For a beneficiary with addiction or creditor problems, use a spendthrift trust with a discretionary standard and an independent trustee. ☐ ⚠ Note that spendthrift protection generally fails against child support and spousal support claims.

Phase 8 — Tax checkpoints

☐ Confirm whether the federal estate tax is even in play — 26 U.S.C. § 2001 and the exemption at 26 U.S.C. § 2010. ⚠ Verify the current indexed figure and any scheduled change. For most families the answer is no.

☐ ⭐ Check the STATE estate or inheritance tax. Several states tax at thresholds far below the federal exemption. This is the transfer tax families actually encounter.

☐ Confirm the marital deduction applies — 26 U.S.C. § 2056. ⚠ A non-citizen spouse requires a qualified domestic trust.

☐ ⚠ ⭐ At a first death in a married couple, calendar the federal estate tax return for the PORTABILITY election, even with no tax due. Failing to file forfeits the deceased spouse's unused exemption. This is a genuine malpractice trap.

☐ Preserve the basis step-up — 26 U.S.C. § 1014. ⚠ Do not gift appreciated property during life without running the numbers. ⚠ Do not add a child to a deed — it creates a partial gift, exposes the property to the child's creditors and divorce, requires the child's signature to sell or refinance, and forfeits part of the step-up.

☐ ⚠ Do not transfer a residence while retaining occupancy and expect it out of the estate — 26 U.S.C. § 2036 pulls it back, and the basis is gone too.

☐ Track lifetime gifts — annual exclusion at 26 U.S.C. § 2503, unified credit at 26 U.S.C. § 2505. ⭐ Direct payments of tuition and medical expenses are unlimited and excluded.

☐ Consider generation-skipping exposure — 26 U.S.C. § 2601 — and allocate the exemption deliberately.

☐ Preserve disclaimer flexibility — 26 U.S.C. § 2518. ⚠ Nine months, in writing, no acceptance of benefits, no direction of where it goes. ⭐ After a death, tell the family to touch nothing until this is analyzed.

☐ ⚠ Do not assume a state court reformation binds the IRS — Commissioner v. Estate of Bosch, 387 U.S. 456.

☐ Remember trust income tax brackets compress sharply — Knight v. Commissioner, 552 U.S. 181. ⭐ Accumulating income in a trust reaches the top rate almost immediately.

Phase 9 — Storage and communication

☐ Original will — in a fireproof box at home, with the lawyer, or on deposit with the court where permitted. ⚠ Not in a safe deposit box only you can open. ☐ Copies to the executor, trustee, agents, and health care agent. ☐ A one-page location letter naming where everything is: documents, accounts, insurance, safe deposit box and its key, the CPA, the financial advisor, the insurance agent. ☐ A digital access plan — password manager, emergency access, and platform legacy-contact settings. See The Digital Estate and Online Account Toolkit. ☐ Tell your family the plan exists and where it lives. ⭐ This defeats more plans than any drafting error. ☐ Give the health care documents to the primary physician and the hospital system.

Phase 10 — Maintenance

Reopen the file on any of these: ☐ Marriage · divorce · death of a spouse ☐ Birth or adoption ☐ A beneficiary's death, disability, addiction, divorce, or creditor trouble ☐ ⚠ Moving to another state — especially between community property and separate property systems ☐ Buying real property, particularly out of state ☐ A material change in wealth in either direction ☐ Starting, buying into, or selling a business ☐ A change in federal or state tax law ☐ ⭐ A named fiduciary becoming unwilling, unable, or estranged ☐ Otherwise, every three to five years

At each review: ☐ Re-read every beneficiary designation ☐ Confirm funding of everything acquired since the last review ☐ Confirm the fiduciaries are alive, willing, and still right ☐ Confirm the powers of attorney are recent enough to be accepted — ⚠ old ones are refused routinely ☐ Refresh the asset inventory ☐ Re-run state tax exposure if domicile or property location changed ☐ Confirm someone still knows where everything is

The fifteen failures

⚠ The trust was never funded. ⚠ A beneficiary form still names an ex-spouse. ⚠ A minor was named directly. ⚠ The portability return was never filed. ⚠ Appreciated property was gifted during life. ⚠ A child was added to the deed. ⚠ An inheritance went outright to someone on benefits. ⚠ The power of attorney lacked express gift and trust powers. ⚠ The power of attorney was too old to be accepted. ⚠ No spousal consent was obtained under 29 U.S.C. § 1055. ⚠ There was no residuary clause. ⚠ There were no contingent beneficiaries. ⚠ Nobody knew where the documents were. ⚠ The tangible personal property memorandum was never written. ⚠ Trust language predating the SECURE Act forced the worst payout available.

⭐ Each of these is fixable in under an hour. Each of them regularly costs a family five or six figures.

Situation supplements

If you are a parent of minor children

☐ ⭐ Nominate a guardian today. This is the reason not to postpone the plan; everything else can wait a month, and this cannot. ☐ Name a successor guardian. ☐ Ask both nominees before naming them. ☐ Create the trust so the inheritance is not delivered at eighteen. ☐ Name the trust on every life insurance policy and retirement account as contingent. ☐ Size the life insurance to replace income through majority, plus childcare and education. ☐ Write a short letter of guidance to the guardian — values, schools, faith, relationships to maintain. ⭐ Not legally binding, and read more carefully than anything that is.

If you are unmarried but partnered

☐ ⚠ Your partner inherits nothing by intestacy, in every state, no matter how long the relationship. ☐ ⚠ Your partner has no automatic right to make your medical decisions and may be excluded from your hospital room. ☐ Health care proxy and HIPAA release naming your partner — the two most urgent documents in this situation. ☐ Durable power of attorney naming your partner. ☐ Will or trust naming your partner explicitly. ☐ Beneficiary designations naming your partner. ☐ Consider titling the home as joint tenants with survivorship, after checking the gift and basis consequences. ☐ Written instructions on disposition of remains, because the statutory priority list will otherwise put a relative ahead of your partner.

If you are remarried with children from a prior relationship

☐ ⭐ Use a QTIP or marital trust so the surviving spouse is provided for and the remainder goes where you choose. ☐ ⚠ An outright bequest to a spouse gives that spouse the power to redirect everything. Say this out loud to the client. ☐ Confirm any prenuptial waiver was matched by a post-marriage plan consent under 29 U.S.C. § 1055. ☐ Check the elective share in the state — it may override the plan regardless. ☐ Address the house specifically: occupancy, taxes, insurance, maintenance, and what happens on remarriage or a move to care. ☐ Name a neutral trustee where the spouse and the children are adverse.

If you own a business

☐ Buy-sell agreement with a valuation mechanism, funded with insurance. ☐ Successor management named, separately from ownership. ☐ ⚠ Check transfer restrictions before assigning to a trust. ☐ Key person insurance. ☐ Confirm the operating agreement permits what your estate plan assumes.

If you have out-of-state property

☐ ⭐ This is the strongest case for a revocable trust. Each state's real property otherwise requires its own ancillary probate, its own lawyer, and its own timeline. ☐ Deed it into the trust and confirm the local title company's requirements before recording. ☐ Check that state's estate or inheritance tax.

The one-page version

If you do nothing else, do these seven things, in this order:

  1. ⭐ Read every beneficiary form you have. Retirement, insurance, annuities, bank, brokerage. Fix the wrong ones today.
  2. Sign a durable power of attorney with express gift, trust, beneficiary, and disclaimer powers.
  3. Sign a health care proxy and a HIPAA release, and hand copies to the people named and to your doctor.
  4. Sign a will with a residuary clause, contingent beneficiaries, an executor nomination, and — if you have minor children — a guardian nomination and a trust.
  5. Write the tangible personal property memorandum. The ring, the tools, the photographs.
  6. Write the location letter and give it to the person who will need it.
  7. Calendar a review for three years from today, and reopen it sooner if anything on the trigger list happens.

⭐ That is a complete, functioning plan for most families, and every item on it can be done in a single week.

What to bring to the first meeting

☐ A list of everyone you would name, with full legal names, addresses, and dates of birth ☐ Deeds for every parcel of real property, showing exactly how title reads ☐ Recent statements for every account, showing exactly how each is titled ☐ Current beneficiary statements from every custodian ☐ Life insurance policies and annuity contracts ☐ Any business operating, shareholder, or partnership agreement ☐ Any prior will, trust, or power of attorney ☐ Any prenuptial or postnuptial agreement ☐ Any divorce decree or support order ☐ Gift tax returns, if any were filed ☐ ⭐ A one-sentence answer to: if you were hospitalized tomorrow, who pays your mortgage?

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