The need to periodically review and update one’s estate planning can go neglected for years. In the end, it may be too late because the person involved has either become incapacitated or is deceased.

The last thing the decedent’s surviving loved one (beneficiary) needs is an unwelcome surprise — an unforeseen gotcha — in the decedent’s estate planning that was assumed to be good but unfortunately was not reviewed.

For example, there are many joint living trusts created by spouses as so-called “AB” or “ABC” trusts where the joint trust assets are divided into two or more subtrusts at the death of the first spouse (deceased spouse).

At the deceased spouses’ death, these AB and ABC trusts allocate the decedent’s share of the joint trust to one or more irrevocable subtrusts where the surviving spouse has limited lifetime benefits in the decedent’s assets.

These irrevocable subtrusts are more complicated and expensive to administer than if the deceased spouse leaves all to the surviving spouse.

They also impose serious limitations on the surviving spouse’s use of the deceased spouse’s assets.

To be sure, AB and ABC trusts do have their place – such as in blended families and in very wealthy estates — but for years they were overused. Many old and unexamined estate planning documents still have unnecessary AB and ABC trusts.

Another example is a surviving spouse in a second marriage who expects to live in the residence that she co-owned with the deceased spouse.

However, as drafted, their joint trust left the deceased spouse’s half of the residence outright to the deceased spouse’s own child at the deceased spouse’s death. Thus, the surviving spouse and step child co-own the residence.

This situation may or may not work out to the surviving spouse’s satisfaction as it opens the possibility that the step child will force the sale of the residence or otherwise argue about the residence.

Had the couple seen an attorney while both were alive, the attorney might have recommended that the surviving spouse have a life estate in the decedent’s one-half share of the residence.

The life estate typically involves the deceased spouse’s interest being held in further trust which can sell the residence and purchase a replacement residence (if the surviving spouse wants to relocate).

Alternatively transferring title to the child subject to a life estate for the surviving spouse might work. While a life estate is simpler in the short term it might not work out in the term if the surviving spouse needs to relocate.

Another example is a parent who leaves an inheritance outright to a special needs child who receives SSI or food stamps needs based government benefits and so jeopardizes the child’s government benefits.

Had the parent discussed the estate planning with an attorney a special needs trust to preserve the child’s benefits might have been used.

Next, consider a “do it yourself” will that does not meet the requirements to be either a standard will or a handwritten will.

For example, consider a person who types up a “will” and has it notarized (but not witnessed).

This typed and notarized “will” is not an acceptable will because it was not witnessed by two disinterested witnesses — and it also is not a handwritten will. Additional evidence is needed to satisfy the court to accept the will and such wills invite litigation.

In addition, such a will is unlikely to address issues including whether a bond is required of the executor, naming alternative death beneficiaries, and providing adequate powers to the executor. The likely deficiencies alone justify taking it to an attorney and getting it redone correctly.

The foregoing is not legal advice. Anyone confronting the issues addressed should consult with a qualified attorney.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 707-263-3235.