Plan for the Worst, Hope for the Best

Clients often arrive at my office with a plan already in mind, frequently one suggested by their financial advisor: a transfer-on-death (TOD) deed for the house, a simple will, and a general durable power of attorney. When I suggest adding to that plan, the response is understandable. The advisor's approach is simpler and cheaper.

I want to be clear about where this advice comes from. The advisors I work with act in good faith and for sound reasons. They know the client's finances, value simplicity, and want to keep costs down. Many of them are the reason clients come to an estate planning lawyer at all. Advisors see the plan on the day it is signed. Lawyers often see it on the day it is tested, after a death or a loss of capacity, when the family is at a bank counter, in the Orphans' Court, or in a lawsuit. This piece shares that second view in the hope that it is useful to the advisors and clients who read it.

Both are true. A TOD deed is a short document and requires a recording fee. A coordinated plan requires more meetings, more documents, and a larger fee. Since October 1, 2026, Maryland homeowners can use TOD deeds, as residents of D.C. and Washington State already could, so more clients will likely ask about them.^[1][2]

A simple plan can leave out some risks and some costs that arise later, after the person who signed has died or lost capacity. Those costs fall on the family, in terms of time, money, and relationships.

Why lawyers plan for the bad day

Lawyers are trained and regulated to plan for the worst and hope for the best. Our professional conduct rules require competence and thoroughness reasonably necessary for the matter, along with sufficient explanation for the client to make an informed decision.^[3] We answer to bar regulators and to our clients when a plan fails for a reason we should have foreseen.

So a lawyer reviewing a deed-and-POA plan asks questions that can feel unwelcome. What if your daughter dies before you? What if you change your will but forget to update the deed? What if the bank won't accept the power of attorney? What if your children stop speaking to each other?

Those questions take time and add cost. They also arise from real cases and represent risks that a simple plan does not always address.

Four things worth a second look

1. The deed runs on its own track

Under Maryland's new act, a will cannot revoke a recorded TOD deed, even if the will is signed later. A recorded deed is changed by recording a new deed or a revocation.^[1] A client who updates a will but forgets the deed may find the old deed still controls.

An Ohio case illustrates how that can play out. A woman had a falling out with the neighbor named in her TOD deed. She signed a new will and power of attorney favoring someone else, but her lawyer never prepared a new deed. When she died, the land passed to the neighbor she intended to exclude, and the person she intended to benefit had to sue. An appeals court allowed the suit to proceed on a constructive trust theory.^[4]

The statutes' default rules can also surprise families. Each requires the beneficiary to outlive the owner. If a beneficiary does not, Washington's statute provides that the interest lapses, with the share passing to any co-beneficiaries. Maryland and D.C. apply their general lapse rules, so the outcome can depend on who the beneficiary was and how the deed is written. Multiple beneficiaries are treated differently, too: Maryland defaults to joint tenancy with right of survivorship, while D.C. and Washington default to equal shares with no survivorship.^[1][2] Naming alternates takes the guesswork out, and so does reviewing the deed against the rest of the plan.

2. Families sometimes dispute deeds

A Kansas man signed four TOD deeds for the same land between 2002 and 2018. The last was typed by the wife of a nephew who, together with the nephew's mother, held the man's power of attorney. It was notarized at a nursing home 20 days before the man died at 102. Cousins litigated through a partition action, an unsuccessful mediation, a two-day bench trial, and an appeal. The court upheld the 2018 deed, finding no clear and convincing evidence of the suspicious circumstances required to presume undue influence, but not until June 2022, more than three and a half years after his death. His longtime lawyer testified that he drafted the deeds he was asked to prepare and never provided comprehensive estate-planning advice.^[5] The point is not who was right. It is how long and how costly it took to answer the question.

Other cases follow a similar pattern. In Indiana, siblings went to court over a mother's TOD deed and a later quitclaim deed she delivered but never recorded. The appeals court held that the unrecorded deed ended the TOD designation. In another Kansas case, a recorded TOD deed and a later delivered but unrecorded quitclaim deed produced opposite results in the trial and appellate courts.^[6] Rules vary by state, and Maryland's act requires a recorded instrument to revoke a recorded deed. Scholars have also noted unresolved questions about how TOD deeds fit with traditional inheritance rules.

3. Institutions do not always follow the plan

A power of attorney is only as good as the institution that accepts it. Consumer reporting, including a 2013 New York Times piece by Paula Span, describes banks and brokerages that turned away valid powers of attorney not drafted on their own forms, sometimes even when the account owner could no longer sign a new one.^[7] Maryland now bars a person from requiring a different form for a statutory-form power of attorney, and a court can order acceptance and award attorney's fees. D.C. requires an institution to accept the document or request a certification within seven business days, but it still allows refusal if the institution believes in good faith that the power is not valid. In either place, enforcement requires a court order, which may take time a family may not have.^[8]

A general POA also has built-in limits. Under the Uniform Power of Attorney Act model that D.C. and Washington follow, an agent may make gifts or change beneficiary designations only if the document expressly grants that power.^[9] The authority also ends at death, so a POA does nothing to settle an estate.^[10] In Washington, a power of attorney is not automatically durable: under RCW 11.125.040, it ends at incapacity unless the document provides that it survives, so a form without that language can fail when it is needed most.^[11]

Nor does a TOD deed always avoid claims against the owner. In Washington, a TOD beneficiary takes the property subject to the owner's debts and may be liable for allowed claims and statutory family allowances, to the extent the statutes provide.^[12] In Maryland, the act itself subjects TOD transfers to the elective share and related protections for a surviving spouse, and the Supreme Court of Maryland has allowed a spouse to challenge non-probate transfers that unlawfully frustrate the elective share, applying a fact-by-fact test rather than a bright-line rule.^[13]

4. Broad power, little oversight

A general durable POA gives one person broad control over your finances, and once you lose capacity, no one routinely monitors how it is used. A 2008 study by the AARP Public Policy Institute identified structural risks in powers of attorney, including the breadth of the agent's control, limited oversight after incapacity, and unclear standards for the agent's duties.^[14]

Most agents act faithfully, but the news shows what can happen when one does not. In 2024, Florida authorities charged a neighbor with using an allegedly invalid power of attorney and a quitclaim deed to take a disabled man's home. In Montana, a man pleaded not guilty to charges of exploiting an elderly woman after a quitclaim deed and a TOD deed in his favor were prepared. These are allegations, not findings, and most families never face anything like them, but the pattern is familiar to anyone who handles elder law.^[15]

What it can cost when it goes wrong

The simple plan is cheaper at signing. When it falls short, the bill arrives later and lands on the people it was meant to help.

Time. A fight over a deed does not follow probate's schedule. The Kansas case above took more than three and a half years to resolve, and in the other Kansas dispute, over a September 2013 death, the question was not decided until a 2015 appellate opinion.^[5][6] Even a Maryland probate estate runs on a timetable: creditors generally have up to six months from death to present claims, and the personal representative's first account is due nine months after appointment.^[16] When a deed fails and the house reverts to the probate estate, the family is on that track, sometimes with a lawsuit on top.

Money. Litigation is billed by the hour on all sides, and in a family dispute, fees often come out of the inheritance being fought over. If a deed fails and the house passes through a Maryland probate estate, the personal representative's commission can be up to 9% of the first $20,000 and 3.6% of the remainder. The court may also allow reasonable attorney's fees while reviewing whether the total is fair. The commission is a ceiling, not an entitlement, and a personal representative may waive it.^[17] If a power of attorney lacks a power the family needs, such as authority to make gifts, the fallback can be a court-supervised guardianship. In Maryland, a guardian of the property generally needs court authorization to make gifts.^[18]

Family. This cost is the hardest to measure and often the largest. In a national survey commissioned by Kiplinger and conducted by Morning Consult, one-third of adult children said they expect an inheritance to create conflict with their siblings. Cornell's Karl Pillemer, who studies family estrangement, observes that sibling disputes over estates and wills almost always surface in the context of older, unresolved grievances, with money serving as a measure of perceived slights.^[19] Clear directions cannot repair old hurts, but they can reduce the ambiguity that gives a disagreement something to attach to. A lawsuit over a deed puts that conflict on the public record and creates a winner and a loser.

Where advisors, lawyers and online services fit

Accountability is another difference, and it is structural, not personal. Online document services can offer a low-cost starting point because their terms limit what happens if a document falls short. One leading provider's terms state that it is not a law firm or an attorney, that its forms are not a substitute for an attorney's advice, that liability is limited to the amount the customer paid, and that no attorney-client relationship or privilege is created.^[20] If a deed is mis-drafted, never recorded, or overtaken by a later document, the family typically learns of it only after the owner has died, when no one is left to fix it.

When regulators have stepped in, it has usually followed many sales. In 2010, Washington's Attorney General filed an assurance of discontinuance with an online provider after expressing concern that its estate planning documents were insufficient for all Washington residents; the release noted that it did not offer a community property agreement form. Ohio's Supreme Court assessed about $6.4 million in civil penalties against two companies and their owners for selling living-trust packages to seniors through non-lawyers. California obtained a judgment that included roughly $2.5 million in civil penalties against an insurer whose marketing partner's representatives presented themselves as estate planning experts to sell annuities.^[21] These cases involved sales organizations, not financial advisors. I mention them only to explain why professional accountability matters.

Financial advisors play a distinct and valuable role. Their expertise lies in investments and cash flow, and careful advisors make clear that they do not give legal advice. For our part, lawyers do not give investment advice. Courts and statutes in Washington treat choosing which legal documents a person needs as the practice of law, and an Iowa court reached a similar view about a financial planner who counseled clients on their estate documents.^[22] That is not a criticism of advisors. It is a reason to introduce a lawyer early, which protects the advisor as well as the client.

Lawyers are not immune to error; the Ohio case above began with a lawyer's oversight. Maryland also limits who can sue: beneficiaries generally cannot sue the lawyer who drafted a plan, and the Supreme Court of Maryland reaffirmed that strict privity rule in 2024, leaving only a narrow exception. D.C. is more permissive. Even so, a lawyer owes the client a duty of competence, is subject to professional discipline, and answers to the client. That accountability is why we ask the uncomfortable questions in the first place.^[23]

One option to consider: a funded trust

For many families, a revocable trust that owns the house and other major assets is worth considering. It costs more up front and is not right for everyone; Ohio's Supreme Court has observed that a living-trust package "is often not needed and may even be harmful" for people with simple estates.^[21] In exchange, a well-drafted trust can address several of the risks above.

You give directions, not just a name. A TOD deed names only who gets the property. A trust can specify how and when: hold the house until the youngest child finishes school, let one child buy out the others at an appraised price, stagger distributions by age, or provide for a stepchild who would be left out by intestacy rules. It can name alternates for every beneficiary and add spendthrift protection for a beneficiary's share, although claims for child support or spousal maintenance, and certain government claims, may still reach that interest.^[24]

The person in charge owes real duties. The beneficiary of a TOD deed has no fiduciary duties to anyone, and a POA agent's authority ends at death. A trustee is a fiduciary. Maryland, D.C., and Washington each require a trustee to administer the trust solely in the beneficiaries' interests, to act prudently and impartially, and to keep qualified beneficiaries reasonably informed.^[25] While the settlor is alive and has capacity, those duties run to the settlor, and beneficiaries' rights generally begin when the trust becomes irrevocable or the settlor can no longer act.^[26] After that, beneficiaries can go to court to compel an accounting, remove the trustee, or recover losses. Those duties can be assigned to a family member, a professional fiduciary, or a combination.

One document covers incapacity and death. If you become unable to manage your affairs, your successor trustee steps in and manages trust assets under the same document, without requiring a bank to accept a power of attorney. The trustee can usually provide institutions with a short certification of trust rather than the full instrument, although an institution may still request excerpts showing the trustee's authority.^[27] At death, the same trustee continues.

The family avoids probate for what the trust owns. Assets titled in the trust pass under its terms, not through probate.^[28] There is no waiting for a court-appointed personal representative to access those assets, and far less paperwork for a family in mourning. That leaves more room to grieve and to celebrate the life of the person who made the trust.

Three cautions keep this honest. A trust controls only what is titled in it, so the deed and accounts must be transferred, and the will and beneficiary designations must match. In an Iowa case, the decedent's revocable trust held his assets, so the trust controlled their disposition, and the house his later will left to a neighbor did not pass under the will.^[28] A trust is also not a shield against everything: in Maryland, the same fact-by-fact elective share analysis applies to revocable trusts as to other nonprobate transfers.^[13] And a trustee is still a person who can make mistakes; the difference is that the law gives beneficiaries a way to hold the trustee accountable.

The tools are fine; the question is how they fit together

None of this makes TOD deeds or powers of attorney bad tools. Maryland's General Assembly passed its act unanimously, and for some families, a TOD deed is exactly right.^[1] A well-drafted durable POA is essential in almost every plan. Questions about Medicaid, creditors, and taxes can change the answer for a particular family, and because Maryland's act is new, it is worth confirming how those rules apply before relying on a deed alone.

The risk is treating two documents as the whole plan. A coordinated plan asks how each piece interacts with the others: the will, the deed, beneficiary designations, a trust where one fits, and a POA drafted with the powers your agent will actually need. It names alternates. It anticipates the child who dies first, the spouse who remarries, and the bank that says no. If you are an advisor, these are a few questions worth asking alongside the client's lawyer:

• Does the deed name alternate beneficiaries, and do the will, any trust and the beneficiary designations tell the same story?

• Will the institutions holding the assets accept the power of attorney, and does it grant the powers the agent will actually need, including durability language in Washington?

• What happens if a beneficiary dies first, a child divorces or a spouse remarries?

• Is the house, or any other major asset, titled the way the plan assumes?

• Who steps in, and with what authority, on the day the owner can no longer act?

That is planning for the worst while hoping for the best. When a client tells me the advisor's plan is simpler and cheaper, I agree and then ask what it would cost the family if the bad day comes. The strongest plans I see come from advisors and lawyers working together: the advisor knows the assets and goals, and the lawyer builds a structure that holds up when things go wrong. If you are an advisor who would like a second set of eyes on a client's plan, or a resource for questions like these, we would be glad to help. And if you already have a TOD deed or a form POA, or are considering one now that Maryland allows it, have it reviewed against the rest of your plan.

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

Notes

1. Maryland Transfer-on-Death Deed Act, 2026 Md. Laws ch. 751 (H.B. 738) (cross-filed as S.B. 651), effective Oct. 1, 2026; Md. Code, Real Prop. Title 14, Subtitle 10 (see §§ 14-1003, 14-1008, 14-1009); Md. Code, Est. & Trusts § 1-402. House passage 129-0 (Mar. 9, 2026), Senate passage 42-0 (Mar. 20, 2026), House concurrence 133-0 (Mar. 24, 2026). Bill history; Dep't of Legislative Services fiscal and policy note. ↩ ↩ ↩ ↩
2. D.C. Code § 19-604.13; RCW 64.80.100 (see also RCW ch. 64.80). ↩ ↩
3. Md. Rules 19-301.1 (competence) and 19-301.4 (communication); D.C. and Washington Rules of Professional Conduct 1.1 and 1.4. ↩
4. Blausey v. Van Ness, 2013-Ohio-5624 (Ohio Ct. App. 6th Dist.) (No. OT-13-011), summarized at Reminger, Ohio Estate and Trust Dispute Law Updates. ↩
5. Woodard v. Hendrix, No. 123,900 (Kan. Ct. App. June 24, 2022) (unpublished memorandum opinion). ↩ ↩
6. Robinson v. Robinson, 125 N.E.3d 1 (Ind. Ct. App. 2019) (No. 18A-EM-2742); Sheils v. Wright, 51 Kan. App. 2d 814, 357 P.3d 294 (2015). Danaya C. Wright & Stephanie Emrick, Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide, 78 Md. L. Rev. 511 (2019). ↩ ↩
7. Paula Span, New York Times (2013), as summarized in "What to Do When Your Power of Attorney Is Powerless," Next Avenue. ↩
8. Md. Code, Est. & Trusts § 17-104 (statutory-form powers of attorney; court order and attorney's fees); D.C. Code § 21-2601.20 (seven-business-day acceptance rule; good-faith exception in subsection (b)(5)). ↩
9. D.C. Code § 21-2602.01(a); RCW 11.125.240; see also RCW 11.125.390. ↩
10. Md. Code, Est. & Trusts § 17-112; RCW 11.125.100. Each statute protects an agent or third party who acts in good faith without knowledge of the death. ↩
11. RCW 11.125.040 (authority terminates on incapacity unless the writing contains durability language, for powers of attorney created before or after Jan. 1, 2017). ↩
12. RCW 64.80.120; RCW 11.18.200; ch. 11.54 RCW. ↩
13. Md. Code, Real Prop. § 14-1009(a)(1); Karsenty v. Schoukroun, 406 Md. 469, 959 A.2d 1147 (2008) (rejecting a per se rule for a revocable trust and TOD accounts and applying a multi-factor test). ↩ ↩
14. Lori A. Stiegel & Ellen VanCleave Klem, Power of Attorney Abuse: What States Can Do About It (AARP Public Policy Institute, 2008). ↩
15. "Former Miami-Dade corrections officer accused of exploiting 'severely' disabled elderly neighbor," Local 10 News (Oct. 11, 2024); "Libby man accused of fraud pleads not guilty," The Western News (Apr. 9, 2024). ↩
16. Md. Code, Est. & Trusts § 8-103 (claim barred unless presented within the earlier of six months after death or two months after the personal representative's notice); People's Law Library, Estate Administration Timeline (first account due nine months after appointment). ↩
17. Md. Code, Est. & Trusts §§ 7-601 (commission ceiling and waiver), 7-602 (attorney's fees). ↩
18. Md. Code, Est. & Trusts § 13-203 (court may authorize or direct a guardian of the property to make gifts). ↩
19. Diane Harris, "5 Steps to Prevent an Inheritance From Fracturing Your Family," Kiplinger (Oct. 6, 2026); Karl Pillemer, Fault Lines: Fractured Families and How to Mend Them (2020). ↩
20. Terms of service of a leading online document provider (last updated Sept. 4, 2026; accessed Oct. 13, 2026). Terms vary by product and revision date. ↩
21. Wash. Att'y Gen. news release (Sept. 15, 2010) (assurance of discontinuance with an online document provider, Thurston Cnty. Super. Ct.); an assurance is not an admission of a violation, RCW 19.86.100. Columbus Bar Ass'n v. American Family Prepaid Legal Corp., 123 Ohio St. 3d 353, 2009-Ohio-5336, 916 N.E.2d 784 (civil penalties of $6,387,990 imposed jointly and severally; 3,826 acts of unauthorized practice, Mar. 2003 to May 2005). People v. Fremont Life Ins. Co., 104 Cal. App. 4th 508 (2002) (affirming civil penalties of $2,543,000, injunctive relief and restitution; review denied Apr. 9, 2003). ↩ ↩
22. Comm. on Prof'l Ethics & Conduct v. Baker, 492 N.W.2d 695, 701-03 (Iowa 1992) (lawyer discipline; a certified financial planner who recommended a living trust and the documents needed was engaged in the unauthorized practice of law); State v. Hunt, 75 Wn. App. 795 (1994); RCW 2.48.180; Md. Code, Bus. Occ. & Prof. § 10-601. Where the line falls between general information and individualized legal advice varies by jurisdiction. ↩
23. Bennett v. Gentile, 487 Md. 604, 321 A.3d 34 (2024) (No. 25, Sept. Term 2023); Noble v. Bruce, 349 Md. 730, 709 A.2d 1264 (1998). ↩
24. Md. Code, Est. & Trusts §§ 14.5-504, 14.5-505; D.C. Code §§ 19-1305.01 to 19-1305.03; RCW 6.32.250. Exceptions and limits differ by jurisdiction. ↩
25. Md. Code, Est. & Trusts §§ 14.5-802 to 14.5-804, 14.5-813, 14.5-706, 14.5-901, 14.5-902; D.C. Code §§ 19-1308.02 to 19-1308.04, 19-1308.13, 19-1307.06, 19-1310.01, 19-1310.02; RCW 11.98.078, 11.98.072, 11.98.039; ch. 11.96A RCW. ↩
26. Md. Code, Est. & Trusts § 14.5-603; D.C. Code § 19-1306.03; RCW 11.98.072(4). ↩
27. Md. Code, Est. & Trusts § 14.5-910; D.C. Code § 19-1310.13; RCW 11.98.075. ↩
28. Md. Code, Est. & Trusts § 1-101 (definition of property subject to administration); St. Malachy Roman Catholic Congregation of Geneseo v. Ingram, 841 N.W.2d 338, 340-44 (Iowa 2013) (revocable trust held the decedent's home and other assets, so the will's devise of the home had nothing to operate on). ↩ ↩