Every estate plan is different, but there are some common pitfalls I see on a regular basis. Here are 10 mistakes that you should be aware when considering how you want to structure your estate plan in Rhode Island.
1. Forgetting to Fund Your Revocable Trust
You may have a perfectly drafted revocable trust, created with the intention of avoiding probate and, potentially, sheltering a portion of your assets from estate tax. But did you ever fund it? Many trusts get created, funded with a single dollar, and then left alone until the grantor passes away. This defeats the purpose of having a trust in the first place, as your assets will still need to go through probate to “pour over” into your trust.
Think of the trust as a container: it can only hold, and distribute according to its terms, whatever you actually put into it. A living (or inter vivos) revocable trust, funded during your lifetime, allows assets titled in the trust’s name to avoid probate entirely at your death. It also means your successor trustee can step in seamlessly to manage those assets if you become incapacitated.
Note: Not every asset can or should be transferred into your trust. Contact me to discuss.
2. Confusing Your Probate Estate With Your Taxable Estate
Many people assume these are the same thing. You’ve likely been told that certain assets pass outside of probate, such as assets held in trust, joint accounts, accounts with valid beneficiary designations, and real property held as joint tenants with rights of survivorship or as tenants by the entirety. But that doesn’t mean these assets are exempt from estate tax.
To review, your probate estate includes only the assets you own individually (not held jointly, and with no named beneficiary) at the time of your death. But your gross taxable estate includes essentially everything you own: your house, bank accounts, life insurance, retirement accounts, brokerage accounts, and more. You may have successfully avoided probate and still have a taxable estate. The federal exemption remains very high, at $15 million per spouse, but the current (2026) Rhode Island estate tax exemption is $1,838,056, indexed annually for inflation. Massachusetts isn’t much higher, at $2,000,000.
Bottom line: depending on the size of your estate, a probate-avoidance framework alone may not be enough.
3. Leaving or Gifting Assets Outright to Minors
If you have young children, setting up structures to make sure they’re cared for and provided for is one of the most important aspects of estate planning. But making gifts directly to them, or leaving assets to them outright, can do more harm than good. A minor (under 18 in both Rhode Island and Massachusetts) is considered legally incompetent: they can’t sign contracts, open accounts, or otherwise manage assets in their own name.
There are better ways to transfer assets to your minor children during your lifetime. As discussed here, these include a Uniform Transfers to Minor Act (UTMA) account or a 529 Qualifed Tuition Plan. Another option is a Section 2503(c) trust (also known as an age twenty-one trust). There are pros and cons to each, and these should be reviewed carefully before making a decision.
After your death, you can make sure that your assets are held in trust for your kids, with specific distribution rules and parameters depending on their needs. If you simply leave assets to them outright via your will, the court may need to intervene to oversee how they are managed.
4. Naming a Couple as Co-Guardians of Your Minor Children
This one is very common. It’s understandable to want to name a couple as the guardians for your kids in your will. This is usually not a problem. But what happens if that couple later divorces? Rather than risk that ambiguity, it’s usually cleaner to name a single individual, such as your sibling, as guardian, or to explicitly address in your will who keeps the children in the event of a divorce, separation, or the death of one of the co-guardians.
5. Neglecting Digital Assets in Your Estate Planning
Don’t overlook your digital assets. Most of us have a large and growing digital footprint, with a range of our personal assets littered across the web: cloud storage, email accounts, domain names, financial accounts, cryptocurrency holdings, etc. Access to these accounts is often governed by strict terms of service and privacy laws that don’t automatically defer to your executor or agent.
For Rhode Island families, it’s worth noting that Rhode Island has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which applies to fiduciaries, executors, trustees, agents under a power of attorney, and guardians, and governs how and when they can access a decedent’s or principal’s digital accounts.
To make things even easier for your fiduciaries, mosts clients should also consider a Virtual Asset Instruction Letter (VAIL) alongside your other documents, listing the accounts, login and any other information your fiduciary will need to locate your digital assets in order to cancel or transfer accounts according to your wishes.
6. Using Your Will to Detail Your Funeral Preferences
Many people write detailed burial, cremation, or funeral preferences directly into their wills, assuming this legally binds their family to carry them out. In practice, it usually doesn’t work that way. A will typically isn’t located, read, or admitted to probate until weeks or months after a funeral has already taken place. But decisions about disposition of remains are generally made within 24 to 48 hours of death, long before anyone is looking at the will.
Rhode Island allows you to execute a stand-alone, notarized Designation of Funeral Planning Agent. This document gives your designated agent immediate and sole authority over your funeral arrangements and the disposition of your remains, including cremation.
7. Not Using a Personal Memorandum for Tangible Personal Property
People often try to list individual gifts of personal items, such as jewelry, heirlooms, art, furniture, etc., directly in the body of the will. While make specific bequests of personal property can be useful, overdoing it can make your will too rigid. For example, if you later decide to give a specific ring to a different grandchild, you’re forced to execute a formal, witnessed codicil or rewrite the will entirely just to make that change.
There’s also a legal trap here. In Rhode Island, if a will references an external written list, that list is only binding if it existed at the exact time the will was signed. A list written or altered afterward isn’t legally valid.
The better approach is to include a clause directing tangible property to be distributed according to a nonbinding, or precatory, memorandum. This is a separate, informal letter of instruction you can update by hand at any time, without legal fees or execution formalities. It gives your executor clear moral guidance while keeping your plan flexible.
8. Assuming Your Durable Power of Attorney Is Enough (Or Vice Versa)
Clients often assume that if they have a durable power of attorney (DPOA), they don’t need a trust to manage decision-making during incapacity, and vice versa. But, for many clients, neither one alone is sufficient.
A DPOA is an agency relationship that ends automatically the moment the principal dies. Banks and brokerage firms are also notoriously resistant to DPOAs, often rejecting them as “stale” if they’re more than a few years old, or if the document doesn’t explicitly list the exact transaction the agent is attempting. Having a properly funded trust with a successor trustee can solve this problem.
Conversely, the trustee only has authority over assets actually funded into the trust. If you become incapacitated and own an asset outside the trust (i.e., a personal bank account, car, personal residence) the trustee has no power over it. You will need to have a valid DPOA in place to manage financial decisions that fall outside of your trust assets.
And, in either case, you should always have a separate, valid healthcare power of attorney in place.
9. Failing to Update Your Documents as Life or Law Changes
Estate planning documents aren’t a one-time task. Marriages, divorces, births, and deaths, as well as changes in federal and state tax law, all have estate planning consequences.
For example, under R.I.G.L. § 33-5-9.1, a final judgment of divorce automatically revokes any provisions in your will made in favor of your former spouse. But divorce does not automatically revoke beneficiary designations on non-probate contractual assets like life insurance, annuities, or retirement accounts.
The reverse trap applies to marriage. Under R.I.G.L. § 33-5-9, getting married automatically revokes your entire pre-existing will, unless the will specifically states it was drafted “in contemplation of marriage” to your new spouse. Failing to update your plan after a wedding subjects your entire estate to the laws of intestacy.
Learn more about updating your estate plan here.
10. Procrastinating on Your Estate Plan
Many people simply never get around to creating an estate plan or even a simple will. If you die without a will, it means you die “intestate”, and your assets will be subject to Rhode Island’s default Rules of Descent. So, the state of Rhode Island essentially writes your will for you, which isn’t always ideal.
For example, married couples often assume that if one spouse dies without a will, the survivor simply inherits everything. In Rhode Island, that’s not the case if you have children. Under R.I.G.L. § 33-1-5, a surviving spouse only inherits a life estate in the real esate. The remainder interest passes to your children, which means your spouse can’t sell, refinance, or mortgage the home without Probate Court approval and representation for the minor children. Also, Under R.I.G.L. § 33-1-10, if you die intestate married and with issue (children), your surviving spouse is entitled to only half of your surplus personal property (cash, bank accounts, investments) with the remaining half passing directly to your children.
If you die intestate with no surviving spouse, descendants, or kindred, your real estate escheats to the municipality where it’s located, and your personal property escheats to the State of Rhode Island.
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These are just some of the common issues I see. Other common issues stem from using a cheap online will service or template, where many of the nuances of Rhode Island or Massachusetts law aren’t considered or the document execution isn’t done correctly. And template-driven estate plans are even more risky when you’re dealing with blended families, higher net worth households with estate tax exposure, special needs planning, creditor protection, and other complicated factors.
The good news is that every one of these issues is fixable with the right planning. If you’re not sure how your current plan stacks up, I’m happy to take a look.
