Your 50s can bring competing responsibilities: helping aging parents, supporting children as they enter adulthood, and preparing for your own retirement. With so many people depending on you, it is easy to put your estate plan at the bottom of the list. In my practice, the biggest estate planning mistake I see is avoidance.
“Estate planning is not simply about how much you own. It is about whom you want to protect, who should make decisions when you cannot, and whether your documents still reflect your life.”
– BARRY E. JANAY, ESQ.
This article provides general information and is not legal advice. Estate planning needs and legal requirements vary by individual circumstances and jurisdiction.
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Waiting for a Better Time to Start
There is rarely a convenient time to discuss your own mortality, and family, work, and financial pressures always provide another reason to wait. Begin the conversation: identify the people who rely on you, consider your wishes, and meet with an estate planning attorney. A thoughtful plan begins with understanding your responsibilities, not reaching a particular level of wealth.
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Assuming an Old Estate Plan Still Fits
A plan created in your 30s may no longer reflect a marriage, divorce, new child, or the loss of someone you named as executor. A will does not simply expire because it is old; the problem is that its instructions may no longer match your intentions. In Matter of Lewis, 25 N.Y.3d 456 (2015), New York’s highest court explained that a stated wish to replace a will does not itself revoke it; a later revoking writing must satisfy the applicable formalities. In New Jersey, marriage alone did not revoke the premarital will at issue in In re Santelli, 28 N.J. 331 (1958). A life change calls for a review, not an assumption that an old document has disappeared.
I generally suggest reviewing your documents about every five years in your 30s and 40s, and every two or three years in your 50s, sooner after a significant life event. These are practical review intervals, not legal deadlines.
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Forgetting About Beneficiary Designations
Many people assume a new will updates every part of their plan and overlook the separate beneficiary designations on retirement accounts and life insurance. In McCarthy v. Aetna Life Ins. Co., 92 N.Y.2d 436 (1998), the New York Court of Appeals held that a will naming someone else did not, without an attempt to follow the policy’s change procedure, replace a life-insurance beneficiary designation. In one matter our office handled, a husband died with his former wife still named as the beneficiary of his IRA.
Divorce can affect a former spouse’s rights, but it is no substitute for checking the form. New York Estates, Powers and Trusts Law § 5-1.4 covers revocable life-insurance and retirement-plan designations, the latter to the extent permitted by law. New Jersey Statutes Annotated § 3B:3-14 has exceptions for express instrument terms, court orders, and marital-property contracts; a New Jersey court applied that rule to a life-insurance designation in Hadfield v. Prudential Ins. Co., 408 N.J. Super. 48 (App. Div. 2009). And in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the Supreme Court held that federal law preempted a state divorce-revocation law as applied to ERISA-governed benefits.
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Planning for Death but Not Incapacity
Your plan should also address what happens if you are alive but unable to make or communicate decisions. A health care proxy designates someone to act for you, a living will documents your treatment preferences, and a durable financial power of attorney covers financial matters. The National Institute on Aging identifies these as important components of advance care planning. In Matter of Daniel TT., 39 A.D.3d 94 (3d Dep’t 2007), a New York court recognized health care proxies and powers of attorney as planning resources that may make guardianship unnecessary, while emphasizing that concerns about the circumstances of their execution still require attention.
Choose people who understand your wishes, are willing to serve, and remain trustworthy. In Matter of Peter by Johanning, 108 N.J. 365 (1987), the New Jersey Supreme Court emphasized giving effect, insofar as possible, to the incapacitated patient’s own preferences. Share copies of your documents with your proxy, doctors, and other appropriate people.
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Overlooking the Realities of a Blended Family
A second marriage can create competing goals: providing for a spouse while protecting children from a prior relationship. Disputes often arise when someone leaves everything to a current spouse, assuming that spouse will later provide for the children. An expectation is not a documented plan. In Matter of Warren, 143 A.D.3d 1110 (3d Dep’t 2016), a New York court recognized an implied gift to stepchildren only in a rare case where the will’s overall plan supported it. In In re Nelson, 454 N.J. Super. 151 (App. Div. 2018), a New Jersey court explained that evidence of a settlor’s intent may be considered in interpreting a trust, but reforming it to correct a drafting mistake requires clear and convincing proof.
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Failing to Consider a Beneficiary’s Public Benefits
An inheritance can count as income for Supplemental Security Income (SSI), and inherited assets may later count as resources, so how an inheritance is structured matters. Tell your attorney exactly which benefits your loved one receives. A trust is not automatically excluded for SSI purposes; its terms and distributions matter. In Matter of Dousmanis (Pierucci), 190 A.D.3d 548 (1st Dep’t 2021), a New York court declined to treat a general support trust as a supplemental-needs trust without evidence that the will intended one. In J.B. v. W.B., 215 N.J. 305 (2013), a child-support case, the New Jersey Supreme Court recognized the benefit-preservation purpose of a special-needs trust while requiring a concrete plan rather than a generic proposal.
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Treating Estate Planning as a Form Rather Than a Process
A standard form cannot ask every question that matters to your family. Documents prepared without individualized advice may look complete while missing an outdated beneficiary, a complicated family relationship, or a loved one’s benefits eligibility. Your attorney may need to coordinate with your accountant, financial planner, and insurance professional.
Give Your Estate Plan a Checkup
Gather your existing documents, review the people you have named, and identify what has changed since you signed them. Approach an estate planning review as you would a medical checkup: an opportunity to identify problems before a crisis makes them harder to address. The difficult conversation today can be an important act of care for the people who may have to make difficult decisions tomorrow.
Barry E. Janay, Esq., is the Principal and Founder of The Law Office of Barry E. Janay, P.C., an estates, trusts, and business law firm with offices in New York and New Jersey. We are glad to review your plan with you.
Barry E. Janay, Esq. is a seasoned New York and New Jersey attorney with over 20 years of legal experience, focusing on estate planning, probate, business law, and complex legal matters. As the founder of The Law Office of Barry E. Janay, he provides strategic, results-driven legal guidance to individuals and businesses navigating high-stakes decisions.
Barry has served as senior counsel and general counsel across multiple industries, bringing deep expertise in regulatory compliance, contracts, and corporate strategy. Known for his direct, no-nonsense approach, he helps clients resolve legal challenges efficiently while protecting their long-term interests.
He is admitted to practice in New York, New Jersey, and multiple federal courts, and has been recognized for his professional excellence and client-focused advocacy.
