Article Summary
Many people complete a will and consider their estate planning done — but a will alone addresses only a fraction of what a complete estate plan requires. This article examines four critical areas where a will provides no protection: the probate process, assets governed by beneficiary designation, incapacity scenarios before death, and estate depletion from creditors or long-term care costs. Working with an estate planning attorney to address these gaps is not a matter of wealth or complexity — it’s a practical necessity for any family with assets worth protecting.
The article outlines how probate can delay asset access for months or years while exposing estate details to public record, how retirement accounts and life insurance — often the majority of a person’s estate — transfer entirely outside the will, and how the absence of a durable power of attorney or healthcare directive leaves families without legal standing during a period of incapacity. It also addresses how estate structures like trusts and strategic asset titling can shield beneficiaries from creditor claims and Medicaid spend-down requirements that a will cannot prevent.
For families in Summit County and across Colorado, the takeaway is clear: a will is a necessary starting point, not a finished plan. Decision-makers who want to protect what they’ve built — and ensure their family has the tools to act when it matters — need a coordinated estate plan that anticipates the full range of scenarios a will was never designed to handle. The right time to close those gaps is before a crisis makes it impossible.
You Have a Will — But Is Your Estate Actually Protected?
A will is often the first thing people think of when they hear the words “estate planning.” It’s familiar, straightforward, and widely recognized as the document that tells the world what you want to happen to your belongings after you’re gone. But relying on a will as your only estate planning tool is one of the most common — and costly — mistakes families make. If you’ve been meaning to sit down with an estate planning attorney in Summit County, you may already sense that a will alone is not enough to fully protect your estate, your family, or your future.
According to a 2024 survey by Caring.com, only 32% of Americans have a will, and of that group, most have no other estate planning documents in place. That means even those who’ve taken the first step often stop there, unaware of how much remains unprotected. A will only activates at death, only governs certain categories of assets, and must pass through a court process before your wishes can be carried out. Estate planning is a system, not a single document, and understanding what a will cannot do is just as important as understanding what it can.
At Lewis & Matthews, we work with families across Summit County to build estate plans that actually do what people assume their will already handles. Our goal is to make sure that when your family needs your plan to work, it works completely — not partially.
Does a Will Have to Go Through Probate Before Your Family Receives Anything?
Yes — any asset that passes through a will must first go through probate, a court-supervised process that validates the document, identifies creditors, and oversees distribution of your property. Your family cannot access those assets until probate is complete, which can take months or years depending on the complexity of the estate. A will does not allow your estate to bypass the legal system; it simply tells the court what to do once that process begins.
According to AARP, probate can take anywhere from several months to over two years to complete and can cost between 3% and 8% of the gross estate value in legal and court fees. For a family that depends on a parent’s assets to cover ongoing household expenses, that timeline can create immediate financial hardship. Probate is also a public process, meaning that the details of your estate — what you owned, who you owed, and who receives what — become part of the public record.
From our perspective as an estate planning attorney in Summit County, the burden probate places on grieving families is one of the most preventable consequences we see. A revocable living trust, for example, allows assets to transfer directly to beneficiaries without court involvement, often within days of a death rather than months or years.
Do All of Your Assets Actually Pass Through Your Will?
No — life insurance policies, retirement accounts including IRAs and 401(k)s, jointly titled property, and payable-on-death bank accounts all transfer by beneficiary designation or by operation of law, completely bypassing your will. A will has no legal authority over these assets, regardless of what it says. If those beneficiary designations are outdated, incorrect, or missing, your assets can pass to unintended recipients and there is nothing a will can do to override that outcome.
According to Fidelity Investments, retirement accounts and life insurance policies often represent 50% or more of a person’s total estate. That means the majority of what most people own is governed not by their carefully written will, but by paperwork they filled out years ago when they opened an account or purchased a policy. Beneficiary designations don’t automatically update when you remarry, divorce, have children, or experience any other major life change.
We see this situation regularly in our estate planning practice. From our perspective as an estate planning attorney in Summit County, outdated beneficiary designations are one of the leading causes of unintended asset distribution — and one of the easiest problems to fix with proper planning and regular review.
Here’s a scenario that illustrates the risk. A widower remarries but never updates the beneficiary designation on his 401(k), which still names his first wife. When he passes away, his current spouse and children receive nothing from that account, regardless of what his will says. The retirement account — potentially the largest asset in his estate — goes to someone outside his current family entirely. A comprehensive estate plan reviewed by an experienced attorney would have identified and corrected this gap years before it became a problem.
Does a Will Protect You If You Become Incapacitated Before You Die?
No — a will only takes effect at death and provides no legal authority for managing your finances, making healthcare decisions, or handling personal affairs during a period of incapacity. If you become unable to manage your own affairs due to illness, injury, or cognitive decline and you have no durable power of attorney or healthcare directive in place, your family may have no legal standing to act on your behalf. In that situation, courts may be required to appoint a guardian — a slow, public, and expensive process that a will cannot prevent.
The need for incapacity planning is not a remote possibility. The CDC reports that approximately 795,000 Americans suffer a stroke each year, and the Alzheimer’s Association estimates that 6.9 million Americans aged 65 and older are currently living with Alzheimer’s disease. These are conditions that frequently result in a period of incapacity before death — sometimes lasting years. A will does nothing to address what happens during that window.
From our perspective as an estate planning attorney in Summit County, incapacity planning is one of the most overlooked components of a complete estate plan, and it’s often the piece families wish they had addressed first. A durable power of attorney designates someone to manage your financial affairs. A healthcare directive outlines your medical wishes and appoints someone to make decisions on your behalf. Together, these documents give your family the legal tools they need to act quickly and decisively when it matters most.
Consider a 67-year-old Summit County woman who has taken the time to write a detailed will. She has not, however, executed a power of attorney or healthcare directive. After a stroke leaves her unable to manage her own affairs, her adult children must petition the court for formal guardianship before they can pay her mortgage, manage her medical care, or make decisions about her living situation. The process takes months and costs thousands of dollars in legal fees — all of which could have been avoided with two documents that take far less time to prepare than most people assume.
Can a Will Protect Your Estate from Taxes, Creditors, and Long-Term Care Costs?
No — a will only distributes what remains in your estate after taxes, creditor claims, and long-term care costs have already been settled. It does nothing to shield assets from those forces before distribution takes place. Protecting your estate from depletion requires legal structures like trusts, strategic asset titling, and coordinated beneficiary planning — tools that must be put in place well before they’re needed, and that a will alone cannot provide.
The Tax Policy Center notes that while the federal estate tax exemption currently sits at $13.61 million per individual for 2024, Colorado residents face a different and often more immediate risk: Medicaid spend-down rules. Under current Medicaid eligibility requirements, applicants may be required to liquidate assets before qualifying for long-term care assistance, potentially depleting savings that were intended for heirs. This is a concern that affects far more families than estate taxes do, and it is entirely addressable with advance planning.
From our perspective as an estate planning attorney in Summit County, asset protection planning is not just for the wealthy. Any family with a home, a business, retirement savings, or other accumulated assets has something worth protecting — and a will alone is not the tool for that job. Trusts, strategic titling, and coordinated beneficiary planning work together to preserve your estate and ensure that what you’ve built actually reaches the people you intend.
Consider a Summit County business owner who dies with a will that leaves everything to his two adult children. His estate includes a commercial property with outstanding business debt. Because no protective legal structure separated his personal and business assets, creditors are able to claim a substantial portion of the estate before distribution. An irrevocable trust, established years earlier with the guidance of an experienced estate planning attorney, could have shielded personal assets from business liabilities entirely.
Your Will Is a Starting Point — Not a Finish Line
A will is an essential part of any estate plan. But it is not a complete plan on its own. A comprehensive estate plan coordinates a will with one or more trusts, regularly reviewed beneficiary designations, a durable power of attorney, and a healthcare directive — all structured to work together so your assets transfer efficiently, your family has the authority to act when needed, and your estate is protected from the costs and delays that a will alone cannot prevent.
The gaps in most estate plans are not obvious. They don’t reveal themselves until a family is already dealing with loss, and by then, the options for correcting them are limited. That’s why the right time to work with an estate planning attorney is not when a crisis is looming — it’s now, when every available tool is still on the table.
At Lewis & Matthews, we guide clients through the full scope of estate planning with the clarity, precision, and care that protecting a family’s future demands. We understand that this is not just a legal exercise. It’s a decision about what you want your legacy to look like and how much protection you want to give the people who matter most to you. If you have a will and believe your estate is covered, we’d encourage you to take a closer look. The document you have may be a strong foundation. The plan around it may be the piece that’s still missing.
If you’re ready to build a plan that actually does what you intend, contact an estate planning attorney at Lewis & Matthews and take the first step toward real protection.
