The Probate Puzzle: Understanding Wills, Assets, and Legal Hurdles
Probate can be one of the most misunderstood parts of estate planning. Many people assume their assets will simply transfer to their loved ones when they pass away, but without the right planning, the process can be long, costly, and stressful.
In Episode 3 of The Death Readiness Podcast, I sat down with my podcast editor, Jon Gay, to discuss his family’s unexpected probate complication. What to Jon seemed like an unusual situation at first turned out to be something I see often: an estate left unsettled for far too long – in this case, 20 years!
Why do estates get stuck in probate?
Probate is the legal process of validating a will and distributing a deceased person’s assets. But it can quickly become overwhelming for the person responsible—known as the executor (if there’s a will) or administrator (if there isn’t). A term that is often used to describe both an executor and an administrator is a personal representative.
Jon’s family found themselves in a situation in which the appointed administrator was unable to complete the probate process, leaving assets in limbo for nearly two decades. Here are some common reasons this sort of delay can happen:
Being a personal representative is a huge responsibility – Managing someone’s estate involves paperwork, court filings, tax returns, and asset distribution. If the person chosen as personal representative is already overwhelmed with their own life, the process can stall.
Health or personal challenges – If the appointed personal representative falls ill or passes away, there will be additional delays.
Lack of guidance or support – Many people assume that being financially savvy (like being a CPA or attorney) automatically makes someone a good personal representative. But estate administration is its own beast, and even professionals can struggle without proper guidance.
Estate planning gaps – A missing or improperly written will can make the probate process even more complicated, sometimes leading to disputes among family members.
How to Keep Your Estate from Getting Stuck
Fortunately, there are steps you can take now to make sure your loved ones don’t face a similar situation.
1. Keep your estate plan up-to-date.
Having a will is a great first step, but it's not enough on its own. You need to make sure your plan reflects your current assets, family situation, and legal requirements in your state. A poorly written or outdated will can create more problems than it solves.
2. Choose your executor wisely.
Many people default to naming a close family member, but that’s not always the best choice. Consider:
Do they have the time and ability to handle the responsibilities?
Would they benefit from professional support?
Should you consider a professional fiduciary instead?
3. Use professional help.
There are professionals whose sole job is to administer estates and guide executors and administrators through the process. Even if you prefer to have a close family member or friend serve as the fiduciary, hiring an after-loss professional can help ease the administrative burden.
An after-loss professional provides hands-on logistical and administrative support to individuals navigating the complexities of settling a loved one’s estate. They offer personalized guidance, helping executors and administrators manage tasks that often fall between the roles of attorneys, financial advisors, and other professionals.
4. Make sure your assets are organized.
One of the biggest hurdles in probate is simply figuring out what assets exist and how they’re owned. Take time to:
List all your accounts and assets (bank accounts, retirement funds, property, etc.).
Know how they transfer (some may pass automatically outside of probate).
Keep your beneficiaries updated (outdated designations can lead to unintended consequences).
Should you avoid probate?
Many people think probate should be avoided at all costs, but that’s not always the case. In some states, probate is a streamlined process, while in others, it’s a lengthy and expensive ordeal. The right approach depends on your specific situation, and a good estate plan should be tailored to your state’s laws and your family's needs.
If you want to keep your estate out of probate, options like trusts, beneficiary designations, and joint ownership can help. But, like anything else in estate planning, these tools need to be used correctly.
Your Next Step: Get Your Affairs in Order
The best thing you can do for your loved ones is to make sure your estate is as organized as possible. To help, I’ve put together a free personal balance sheet here: Balance Sheet —Death Readiness
If you’re feeling overwhelmed by the process, you’re not alone. I help people make sense of estate planning every day. Whether it’s guiding you through the steps, helping you find the right professionals, or just breaking it all down into manageable pieces, I’m here to help.
Want to get started? Schedule a free 15-minute consultation with me here: Scheduling — Death Readiness
🎧 Listen to the full episode here:
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Intro: Welcome to the Death Readiness Podcast. I'm Jill Mastroianni, an attorney with more than a decade of practical experience in trusts and estates, here to demystify the complexities of planning for the inevitable. This podcast is your guide to navigating estate planning and end of life preparation with clarity, compassion, and empowerment. Let's spark the conversation, shift perspectives, and explore how to embrace death readiness together, courageously and thoughtfully.
Jill Mastroianni: Hello and welcome to Episode 3 of The Death Readiness Podcast. Before we get started today, I want to share a story of how I met today's co-host and why he's joining us. Back in December, I went to a holiday mixer at Incubizo here in Ferndale, Michigan, where my husband and I rent office space. I struck up a conversation with someone named David Benjamin and we got onto the topic of podcasts.
I mentioned that I was starting a podcast, but was struggling. My first recording attempt was a real snoozer. David suggested I reach out to someone local named Jon Gay, who helps people with their podcasts. The next morning I attended 1 Million Cups Metro Detroit. If you haven't heard of it, it's a free weekly event where entrepreneurs connect, share resources, and grow their businesses. It's held at Incubizo and it's fantastic. I'll include a link in the show notes if you're curious. 1 Million Cups is in a lot of places, but the one I attend is in Metro Detroit. There's also one over in Ann Arbor that I want to check out. So that morning I grabbed an armchair with the prime view of the presenter. The program started and during the event someone got up to offer advice and he introduced himself as Jon Gay. After the event ended, Jon came over to me and introduced himself, saying he'd heard I was starting a podcast and asked if there was anything he could do to help.
Jon has been a lifesaver. He helped me with the technical aspects of launching the podcast, suggested affordable equipment, created the trailer, and edited the first two episodes. He's worked magic. Trust me on that because only I know the condition of the raw audio I gave him.
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While we were working together, Jon brought up what he thought was a really unusual probate situation his family had encountered. I guessed the issue before he even finished telling me about it. Not because I'm a genius, but because while the situation understandably felt unusual to Jon, it's not as uncommon as you might expect. We'll talk about that issue today, why it happens, and how you might be able to avoid it in your life.
Today, Jon's agreed to chat in generalities about his family's probate experience, and he's helping out in another way. He's co-hosting this episode with me. I'm going to give a basic primer on probate, and Jon's here to stop me if I'm not making sense and to ask the kinds of questions you might want to ask if you were here with me. So, without further ado, Jon, thank you so much for joining me for Episode 3 of The Death Readiness Podcast.
Jon Gay: Thanks, Jill, happy to be here.
JM: Before we get going, I wanted to ask you to explain to us something about the show notes that I refer to in the podcast. I tell people, look in the show notes, you'll find a link to a download or information. And what does that mean? What am I talking about? Can you give the listeners some guidance?
JG: Sure, for anybody not familiar with podcasts or show notes as the unofficial podcast guy, I'm happy to answer that question. So if you are listening to this podcast on your phone, whether it's an Apple or an Android device, whether you're listening to an Apple podcast, Spotify or any other app, if you scroll down from the podcast or swipe the podcast up, you'll see a bunch of text. The text is, generally speaking, a summary of the episode.
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and then any links that Jill wants to include in an episode. So if you're obviously driving somewhere, you're out walking the dog and you hear the podcast and, what's that link? I need that link. You don't have to look away from the road. You don't have to stop the dog and try to grab a pen. It'll be right there in the show notes. So any important resources that Jill references when you're somewhere where you can write it down or you can even click it right from the show notes, whether you're on a mobile device or even on the computer, you can see it on the computer as well. That way you'll have the resources there right in front of you to go back to when it's convenient for you. I hope that answers your question.
JM: Yes, definitely. And also I wanted to add that I do leave the information from the show notes in terms of resources, I leave those on my website as well. So if you go to Oversimply LLC, that's O V as in Victor, E R S I M as in Mary, P L Y LLC.com slash podcast, you can also see all those same resources that are in the show notes. So you have two places you can look.
JG: and you can put the website in the show notes and kill two birds with one stone as well.
JM: Yes, and I did that last time. So you should have no difficulty finding the resources. So Jon, as I had mentioned earlier, you had a little bit of a probate snag in your family that you mentioned to me, and we did a little bit of digging. And I was wondering if you could share with us just in generalities what that was and what your original thinking was about it.
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JG: Sure, and this is the beauty of networking because I ran into Jill because she wanted to start a podcast and I was happy to help with her and I said, wait a minute, you're an estate planning attorney? I have a situation. So I have a family member whose uncle passed away in 2006. She got a check in 2007 and thought all was well and good. Well, turns out a different relative had been appointed executor of this estate and this second relative had passed away recently, the back half of 2024. She came to find out from his widow that there were parts of the estate from 2006 that he had never finished and settled and closed out. There were some assets that this relative of mine was the heir to as well as her siblings, but she didn't even know where to start. And so when I told Jill about this, I'm like, you are never going to guess what happened. So-and-so died in 2006 and she cut me right off. She said, and they never settled the estate 20 years later. I’m like, how'd you know? And she said it happens more often than you think.
JM: So the reason it happens more often than you think is because being appointed to serve in a fiduciary capacity and whether it's an executor, which is the case when there is a valid last will and testament, or you'd have an administrator if there is no last will and testament, a catch-all term for both is often personal representative, but that is not an easy job.
If you know someone who has served in that capacity and that person said it was easy, then their circumstances were different than the vast majority of people. And so what I would often tell clients is you are not doing anybody any favors by appointing them to serve in this fiduciary capacity. And a lot of times people would say, well, you know, my
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Uncle Joe, he's a CPA or my aunt Susan, she's an attorney. They'll have no problem doing this.
JG: I'm so glad you said CPA because this executor was a CPA and apparently his health had not been great in the last few years and he just never got around to finishing everything out.
JM: And I imagine that this estate administration was something that was on his mind all the time and he simply felt too overwhelmed to finish it. Now, his widow gave this information to your family member. So I would imagine he was commiserating with his wife about how much this was weighing on him and he really needed to get it done. But probate is a public record. So when Jon told me that there was this situation, I went and looked up the case in the public record to see if I could figure out what might have gone awry. And it wasn't anything that I could see. It was no controversy. Nobody was a bad actor. It was just a person appointed to serve as administrator who had too much on his plate. He was overwhelmed.
When I was practicing at a large law firm, one of the partners in a different area of expertise, not trust and estates, he was appointed to serve as the executor of one of his clients' estates. And he was blindsided by how much work it was. The fact alone of him being a very successful and deservedly successful attorney did not have any bearing on how difficult he was going to find the task of administering his deceased client's estate.
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And he pulled me aside one day and said, I got to figure out what else I'm on. This isn't something that I want to repeat. So this is often not an easy job. And your family member who was appointed to serve, he was trying to do the right thing. And it got to be too much. It got to be too much for him.
JG: Yep, so certainly no ill intent there. I'm, I'm, and I was kind of glad to get that perspective from you when you would walk me through that and explained it.
JM: So one of the things that's always helpful when you see something that's gone off the rails, not helpful necessarily for you, Jon, but helpful for people who might be listening, is what can you do proactively to avoid this situation in the future?
JG: Sure.
JM: I am a big advocate for using professionals. I don't know why we assume that our family members who are not necessarily skilled in these areas can serve in professional fiduciary capacities. But there are people who do this for a living. I mentioned in the last episode with Julie Ulrich because she is a professional in after-loss services that there's a group called Professionals of After-Loss Services who specialize in helping people administer estates. If your family member who was appointed as the administrator, if he had had another professional to help him, to handhold through the process, we wouldn't be where we are today. The other option is that there are professional fiduciaries, people who serve as executor for a living. They know what they're doing. That's an option. And of course, there are corporate fiduciaries, and sometimes that can get a little pricey depending on where you are. The very best thing you can do
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doesn't cost any money at all, it does cost you some time. And that is to get your information updated, organized, and in a place where the people who are going to be settling your affairs know where to look. It's not as if someone's gonna come from the government and say, okay, Jon Gay had these assets, go ahead and transfer them, nobody's going to know. It's going to be a whole investigation and that's not something that we necessarily want to put on anybody.
JG: That's a really good point about have your affairs in order and have it be very easy for somebody to decipher. And I want to go back to the point you made a moment ago, Jill, which is there are specialists who deal in this kind of thing. If you had a problem with your knee and it was really complicated, you probably wouldn't go to your primary care or your general practitioner to figure out the knee. The doctor would say, hey, let me refer you to this knee specialist to go get your knee checked up because they deal with nothing but knees all day long. This is the same thing.
You're saying go to somebody that does this professionally and knows the ins and outs and sometimes wackiness of these types of situations.
JM: Right, and settling an estate is much more than just the legal aspect of it. And the legal aspect can be quite onerous as well, but there is a heavy administrative burden that your family members will have to walk through. And often, someone who has a full-time job, which I think was your family member's situation, he also had an illness that was taking away a lot of his time and his capacity. Having somebody who
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has done this over and over, it's giving you efficiency and often a relatively low cost compared to waiting 20 years to find out that you didn't receive what you should have.
JG: So a word, Jill, that I've heard thrown around a lot in many different ways is probate. Explain to me, the person who has no experience in this realm, what is probate?
JM: Well, first, I want to say that I think there is a fear of probate. It's almost like the great unknown, and everybody thinks that they have to avoid probate. In some situations, yes, it is very beneficial to avoid probate. In other situations, it is not. So that's really where your attorney can step in and explain. California, for example, from what I have heard, that state’s probate system is onerous, very time consuming, and a big administrative burden. I did not think that was the case at all in Tennessee where I practiced. A lot of times it was easier for clients to have a probate estate than to try to get their assets out of probate. So probate is, a legal process of validating a will.
Or if there is not a will, it's the process of distributing the assets according to the will that your state of residence has set up for you. A lot of people think, well, if I don't do a will, the government's gonna take my money. That is not the case. If you do not do a will, then the assets that would otherwise be distributed according to the terms of your will are distributed according to the terms of the state statute. It's called intestate
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succession. The really important part here too is the court supervision part. I had spoken with a few people recently who were confused about whether they could just take a will, you know, a signed will and bring it to a bank and have the bank, you know, distribute the money according to the terms of the will. That you can't do. The bank is not set up to determine whether that will is valid.
Unfortunately, even if it's a signed will, even if it's a will with an affidavit on it, and you have two witnesses sign the affidavit, there's a big case, I think it was back from 2017 or so in the state of Tennessee, the estate of Bill Morris. He had a signed affidavit by two witnesses. He signed his will. It was not a valid will because it did not comply strictly with the state statute. So that is not something that you're bank teller’s gonna figure out for you.
JG: Sure, and you have that experience in Tennessee. I can say that here in Michigan, and this was a national story for anybody who's heard it, when Aretha Franklin passed away, there were numerous wills and different family members coming forward with different claims. It was a massive deal to everybody and to my knowledge as we record this in January of 2025, I'm not sure it's still even completely settled yet.
JM: I would be shocked if it is settled. There's nothing efficient about probate litigation. The probate process, what you need to remember, it's a legal process. It applies to certain types of assets, and we're going to talk about that in a little bit. And it is under court supervision. And that can be a lengthy process. It can be a short process. There are a lot of different factors that go into it,
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including the state where you're a resident and the type of estate that you've left behind that needs to be administered. So Jon, did the relative who passed away in your family, do you recall if he had a will or not?
JG: Well, it's funny what you just said because he thought he had a will, but it wasn't valid. And that complicated things from there.
JM: So not having a will, he was not able to avoid probate simply by the fact of not having a will.
JG: A valid will, yeah.
JM: Right, not having a valid will. Instead, he basically took the default will that was provided to him by his state of residence at his date of death.
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JG: So the state sort of assigns this will if you don't have a valid one, and then it still ended up in probate.
JM: Right. It still ended up in probate because of the types of assets that your family member owned at his death. They were of the type that would be administered by the probate court. And again, we're going to get into exactly how you make that determination a little bit later. But your family member did not have a will. So his probate assets passed according to what we call the laws of intestate succession.
And the laws of intestate succession are different. They vary state by state. They're similar, but not the same. So I practiced in Tennessee. We are now in Michigan. And the rules for intestate succession are different in those states.
So Jon, do you mind if I ask you if you're married and if you have kids?
JG: Married, no kids.
JM: So if you were to pass away, who do you think would receive your probate estate if you did not have a will?
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JG: I would assume my wife would get everything.
JM: She would not, not here in Michigan.
JG: Really?
JM: Yes. And a lot of people think, I'm married, everything will go to my spouse. And that is quite often not true. Now, the law in Michigan is that if you have one or more surviving parents, then they also get a share of your probate estate.
JG: Huh.
JM: And that would not have been the case in Tennessee. If you died in Tennessee, she would have received all of your probate assets.
JG: I gotta stop you for a second, Jill. So, the old joke about that's it, you're out of the will. What you're telling me is, my dad can't necessarily use that on me, but I could use that on my dad.
JM: Well, yeah, you could. You certainly could. So let me turn it back on me for a second and say that I am married. I have two children. They are ages 13 and 20. Who do you think would get my probate estate if I died without a will?
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JG: I would assume some combination of your husband and your children, but you're probably going to tell me I'm wrong.
JM: No, you are right. You are right. It would be a combination of my husband and children here in Michigan, as would have been the case in Tennessee also. And unfortunately, this is where people really get tripped up.
JG: So you said for you it would be your husband, your children. For me it would be my wife and my parents. Would it be my parents in Michigan because I don't have children?
JM: Yes.
JG: Wow! That just blew my mind.
JM: Yeah. So be careful about what you assume about what would happen to your property. And what I see that is actually the most upsetting for me in practice, and obviously is if a young person passes away and that person has young children and did not leave a will behind and there are assets passing to the minor children, that is...
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a real administrative and financial nightmare for the surviving spouse. So I know that a lot of parents don't do their estate planning because they have not decided on who to name as the guardian. My philosophy is do what you can and don't wait to figure everything out because if you're waiting to figure out the guardian and you never did a will in the first place, well, you're in a pretty bad spot if one of you passes away. So don't wait to cross off everything on the checklist. Just take care of what you're comfortable with now and you can always come back to the other stuff later.
JG: That comes back to your first episode where you talked about how overwhelming this whole process can be, but you know, it's the whole, how do you eat an elephant? One bite at a time. You know, start doing what you can as opposed to being overwhelmed by trying to get everything done.
JM: Exactly. And I think that part of what makes estate planning an even bigger hurdle is the complexity of it, or at least the presumed complexity of it, having to talk to an attorney that, you know, maybe you don't know, having to find an attorney. Those are all pretty big hurdles, and it's a lot to try to do that on your own. That is something that I help people with and kind of handhold them through working with an attorney. So that's always an option if finding an attorney and understanding what the attorney tells you is part of the overwhelm that you're experiencing when it comes to estate planning.
The next part that I wanted to talk about is what happens if you have a will. I have a will and I leave everything to my husband if he survives me.
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I wrote the will myself and you should only do that if you're a trust and estates attorney. Please do not do that otherwise because we'll kind of touch on that a little bit later, but you're creating a whole other level of nightmare for your family. But let's say that today I get angry with my husband and I decide, okay, I don't want to leave him anything. So because I'm capable of writing my own will, I write a new one.
And then unfortunately I die tomorrow. Jon, do you think my husband would get any of my property?
JG: See, you're stumping me with all these pop quizzes, Jill. I'm just hung up on the whole don't go to bed angry thing based on what you just said. I honestly don't know at this point.
JM: He would still get 100 % of my property.
JG: Even if you change the will and it was a valid will.
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JM: Yes. And that's what we're going to talk about today.
JG: Okay.
JM: Is why would that happen? Now, Jon, what if you did the same thing? What if you wrote a new will today and you didn't leave your wife anything?
JG: Based on the last 20 minutes of this conversation, is not something I would attempt to do. (chuckling)
JM: Well, let's say you hired someone to do it. (chuckling)
JG: Okay, fine. (chuckling)
JM: Yes, and you change the will, she's out, she's not getting anything, or so you think. Do you think she ends up with any of your property?
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JG: I would say yes.
JM: Well, I don't know,
JG: (chuckling)
JM: because you telling me that you changed your will and your wife is not a beneficiary, that is insufficient information for me to determine
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what your wife gets or doesn't get. The reason I don't know is because I don't know what you own and I don't know how you own it. And what you own and how you own it and whether you've done anything to make it pass to a beneficiary by operation of law or by contract, those are all factors that go into determining what passes under your will.
So, what I would like to do is walk through a few types of asset classes, assets that most of us have some experience with, and we'll figure out whether each of those assets is a probate asset that's going to pass as part of my probate estate. And if it passes as part of my probate estate, then it's going to be governed by my will.
JG: Okay.
JM: Does that make sense?
JG: So if I'm understanding you correctly, Jill, certain types of assets will be governed by a will, a legally binding will, and others may not be.
JM: Yes, that's the case. And it's not necessarily asset specific, but it is how that asset is owned and whether there is any type of other transfer component associated with the asset. And that sounds a little bit vague, but when we walk through the different types of assets, you're going to get a better sense of how that works. So for the first asset, let's just start with your vehicle.
My vehicle is owned by me only. Ordinarily, I would think that that asset, because it's owned by me, it would pass as part of my probate estate. And the reason I would think that is because there's no other direction given as to what to do with the asset. If I owned it jointly with my husband,
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it would pass to him as the other joint survivorship owner. But that's not the case. I own it by myself. So why the heck is he going to get it if I wrote in my will that he shouldn't get anything? Well, he's going to get it because Michigan allows for a non-probate transfer of a vehicle to a surviving spouse if and only if there's no probate otherwise necessary. So it just so happens, and this is like a spoiler alert, that I don't have any other assets that are going to pass via a probate estate.
So I've just got that one vehicle hanging out there. And Michigan says that if there is a surviving spouse, if there is not a probate estate being administered and the vehicle is less than a certain amount of money, and I don't recall what that is, but my vehicle is worth way, way less than that amount of money. So he he would be able to fill out a form and give it to the secretary of state and he could have the title changed to himself. So that's how he's going to end up with my car, even if I tell him that I'd rather he not get anything.
So next is our home.
JG: Big one.
JM: Yeah, we own our home jointly as tenants by the entirety as husband and wife. So when one of us passes, nothing has to happen. The property will vest entirely in the survivor of us. Now, if we both passed, then the house becomes a probate asset.
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JG: Okay.
JM: Because there is not any other direction as to how to distribute that particular asset. So then this asset, the home, is distributed according to my last will and testament.
JG: Interesting, so that takes care of car and home. What's next?
JM: Next, we've just got your garden variety bank accounts. Now, I own my bank accounts from our bank in Tennessee jointly with my husband. So, you know, darn it, he's going to get those too. I did open up a business account here in Michigan.
Now, let me tell you about how that happened because it was an interesting experience for me. And I'm not going to say the name of the bank because it was not a pleasant experience. But I opened an account and I said, I would like to do a payable on death transfer. And how do I do that? And the reason I wanted to do it
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is to avoid probate. I knew that me opening this business account in my name only would be that one probate asset hanging out there that was going to be a real nightmare for my husband. So I decided I'll just do a payable on death so that he gets it if I pass. And I asked how I could set that up. And I was told, you need to make an appointment with this one specific individual.
JG: (chuckling)
JM: And I said, okay, now even to get to that appointment, was kind of confusing to explain what I wanted. I was saying payable on death, transfer on death. But the term that this teller was familiar with was beneficiary, which, you know, we're all getting to the same place. So I went to my appointment and when it was time for me to do the payable on death, the individual I was supposed to speak with had no idea what I was talking about. And I thought, this is just a very normal thing though, you know, payable on death. And I thought, is it something with the way I'm saying it? Am I not explaining myself? And then I was brought to another woman so that she could figure it out. And again, the payable on death wasn't resonating with her.
But she was able to get me to fill out the form. So I filled out the forms and I saw that it said on the form POD. And I think what happened is nobody knew what that stood for. That it stood for payable on death. So when I was saying payable on death, no one was understanding what that meant. And that's not the fault of the people working at the bank. That's a training problem, you know, they were never trained as to what this means.
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JG: so many acronyms.
JM: So I left, thought I'd handled it, and I got something in the mail from this bank regarding this account and where you would ordinarily put my name, I saw my name. It said Jillian Mastroianni, and then it said P O D and then my husband's name and
I thought, that seems to be a rather personal piece of information that you've put in the address of my envelope who I'm leaving my account to. Now, let's say that my husband and I were not on good terms. Let's say that that POD listed my dad or listed my brother and he picked up the mail from the mailbox. He would have seen that. So, I mean, luckily all is fine. I don't really mind that he knows that I left the account to him, I told him I was going to, but it made me think I went into this bank very confident as to what I wanted. I'm an estates and trust attorney and I want to payable on death account. If I sent a client in there and asked them to do the same thing, that client would probably turn around and leave and think, I don't know what I'm talking about. I must be confused.
And that, think, is part of the real problem with the system and with people who are trying to administer estates and not knowing any different is that, unfortunately, a lot of times the representative on the other side, whether it's the bank or the utility company, they're unfortunately misinformed.
JG: For sure.
JM: So it causes you to wonder, am I wrong?
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JG: Yeah, that's self-doubt. All so back to the original question, Jill. Checking and savings accounts in a perfect world where all the employees know how to set everything up, what happens to those accounts?
JM: Well, it's the lawyer's answer, it depends. So if the account is jointly owned and it's a survivorship account, then it is going to pass automatically to the survivor. If there is a single owner, but there is a payable on death designation, some people call this a beneficiary, some people call this a transfer on death designation, that account will pass to the person named in that designation.
If no person is named there, then the asset, that bank account becomes a probate account and it passes according to the terms of the last will and testament or if there is no last will and testament, the laws of intestate succession.
JG: Got it.
JM: What I would caution you against though is deciding to change your payable on death or any type of designation or add one when there isn't one.
I have seen very well-meaning advisors tell their clients to make these changes. Now, their reason for doing that is to avoid a probate, to not have to deal with that. But as an estates and trusts attorney, I have done plans for people based on their representations that certain assets are not going to be payable on death, that these assets will pass and be distributed according to the will.
Maybe we're planning on the account from X bank to be divided among the four kids. And it says that in the will, but your advisor is saying just make it payable to your spouse. Can get tricky, especially in blended family situations. So just have to be extra careful that you understand the full scope of what you're doing before you do anything.
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JG: So to underscore that, the designation on the account would supersede what's in a will?
JM: Absolutely.
JG: Good to know. That's why you want everything lined up. Okay, so checking and savings accounts is one thing. I gotta imagine that retirement accounts are a whole ‘nother ball of wax, Jill.
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JM: Retirement accounts are so complicated that we cannot even really touch the surface of those today. But let's just say that a retirement account is a type of account that can have a beneficiary designation. Now, on my retirement account, I have listed my husband as the primary beneficiary. So again, even if I say I wanted to go to my kids in my will, too bad.
It's going according to that beneficiary designation. And then I actually have as my contingent beneficiary, my estate. And I do that knowing that there are some tax repercussions that will occur because I have not done some more complicated retirement planning using a trust and various provisions. But I do that with the full knowledge of what I'm doing. So the retirement account designation or any designation, it can say, go to my estate. I want the account to go to my estate to be administered by the probate court according to my will if my husband does not survive me. So you're turning an asset that would have been a non-probate asset if my husband survived me into a probate asset if my husband did not survive me.
JG: Got it, that makes sense.
JM: Now, retirement accounts are even further complicated because the retirement plan provider often has a default distribution setting. So for example, if I had not named any beneficiary, often the account will pass to either a surviving spouse or to a probate estate.
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But you never want to rely on that. You always want to do the designation so you know exactly what's going to happen. Another cautionary item, and again, I said I wasn't going to get into the complexities of retirement accounts, and trust me, I'm not. This is still the very superficial level. But when you make your designation on a retirement account, please save the record of that beneficiary designation where you're putting your other estate documents because you might think that behind the scenes things are super well organized and everybody knows what they're doing.
JG: (chuckling)
JM: That's not gonna be the case in most situations. So make sure you have a record of who you designated, because the last thing you want your family to have to do is rely on some default rule or have it passed to the estate when in fact you did have a beneficiary designation that maybe the retirement plan provider cannot find.
JG: This is really kind of the theme of this entire podcast is take things into your own hands. Don't assume it's that old joke about when you assume what, you know, what happens when you assume.
JM: Yes, I think most people would agree knowledge is power. So know what you have and don't leave the fate of your family to someone else having kept it together even if that's supposed to be that other entity's job.
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JG: And speaking of family, know you're a dog lover and you have several dogs. My wife and I, our dog recently passed, but I'm sure we'll be having more dogs in the future. What about pets? What happens to pets?
JM: Well, first, Jon, I would say we probably have an excess of dogs, should you be needing one. No, I don't really mean that, not at this very moment anyway. But pets are a complicated asset because they are an asset. Pets are property, whether we think of them that way or not. And pets can cause, you know, disputes just like any other type of property. So I would just say if you think that there would be a dispute to leave clear information about how that dog is owned. Now, our dogs are all, well, rescue, I mean, one of them, got him on the street so he didn't come with any kind of designations. But, you know, when you go to the vet's office, you know, they usually have the dog under one name or another name or two names. And I honestly, I never keep track of that. can't imagine anyone fighting over these animals that I have. But that is something to think about if you have more than one family member who might want to take ownership of your pet. Now, if it's a dog from a breeder, certainly you're going to have that paperwork. But even if you're adopting a dog, you're going to be signing a contract of some sort. So just keep that in your head if you think that you're going to run into a problem there. The other thing to note is that because pets are property, you cannot leave property to property. So I can't say there have been some famous people who have left exorbitant amounts to their animals. They didn't actually leave that money to their animals.
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They left it to a trust for the benefit of the animal. So that's another estate planning item that we could talk about at another time. But don't go trying to leave money directly to your dog or cat or anybody else because property can't own property.
JG: They can’t sign for it with a paw.
JM: No, no. So you got to leave a pet trust, but that is beyond the scope of what we're going to be doing today.
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JG: Follow up question, Jill, is there a default if you haven't done any kind of a will or arrangements? What would happen to the pet? Would it just go to next-of-kin kind of thing?
JM: Well, it's property. So it's gonna pass according to the laws of intestate succession. And unfortunately, like let's say you get a dog and it's just your dog. Well, your spouse and your parents could be fighting over who gets the dog. But I think in most situations, there isn't going to be a fight. But yeah, if you anticipate that sort of thing happening, then you would want to have a will and you'd want to be very clear as to who receives that property, your pet. There was a situation in Tennessee where a woman died and left instructions for her dog to be euthanized when she died, and that was not permitted. Don't go that route.
JG: Thank God. As a dog lover, I hate hearing that. You mentioned dogs as or any pets as property. What about more tangible personal property, jewelry, furniture, that sort of stuff?
JM: Well, this is something actually I should have mentioned with regard to pet. In some instances, and this is me with the Tennessee background, but I think it's probably somewhat universal, is that there's certain property that is just presumed because of the nature of how it's owned to be owned by the husband and wife jointly. If one of them passes, it just passes to the survivor
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sort of by operation of law without the will. But I did have a situation where there was some very, very valuable music equipment. There was a dispute as to who owned it. So that type of property, again, if you think there's going to be an argument about it, please make sure to provide documentation as to your ownership.
But that tangible personal property, if there's no presumption that it's owned by a husband and wife, then that's part of your probate estate. And that's going to be distributed according to your will or according to intestate succession. Now, if some of you are thinking, well, couldn't I just do a trust? Couldn't I do a trust to avoid probate? You sure could, but we're not going to talk about that today.
JG: That would be for a future episode we can deal with that.
JM: Yes.
JG: Any other kind of things that would influence who receives your probate estate, Jill?
JM: Yes, so states often have the ability for a surviving spouse to elect. Elect against the will, elect against the intestate share. And that is called the elective share. So in Tennessee, the size of the elective share was based on how long you had been married. The longer you were married, the more you could get. And if you married the same person twice, you got to add up the two periods of time that you were married.
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JG: There’s a couple of jokes there, but I'm not going there.
JM: So that's good to know. And that is a way that someone might take otherwise than what is distributed under the will. Also, there are prenuptial agreements. There are postnuptial agreements. And those are contracts that people enter into to alter what would otherwise be permitted under the law. Now, a prenuptial agreement, you don't need to pay each other anything because the consideration is the marriage. So you're getting marriage out of the deal and so that's what you're giving to each other. But if you do a postnuptial agreement, there does need to be consideration and by consideration, I mean money. You have to pay. So keep that in mind too. It's way easier to do a prenup than it is to do a postnup in my opinion.
JG: So as we start to wrap up here, Jill, my big question after going through all these things is, do I need a will? And if so, how do I do it?
JM: It depends, Jon.
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JM: If I had a dollar for every time you said that in this conversation, Jill.
JG: Whether or not you need a will depends on what you have, what you own, how you own it, and how it's designated to pass at your death. I think that having a will is important for everyone because you are going to acquire property throughout your life and maybe you have everything in a trust now, but you're going to go buy something down the road and you're not going to title it in the name of your trust or that you're gonna forget about something. So even when we would do planning and put all the client's assets into a trust because one reason might be to avoid probate, we would also do what was called a pour over will. And we would just do a regular will and say, okay, anything that would be distributed by this will needs to go over into my trust.
So it basically made the trust as the sole beneficiary under the will, and then everything gets administered according to the terms of the trust. I do think that everybody needs a will, but I don't think that you should get a will otherwise than with an estates and trusts attorney. I hesitate to say that because it seems self-serving, although I'm not practicing right now, so I'm not actually going to benefit from it.
There are online tools and while I have not done a thorough survey of each of those tools, every time a will came in front of me that was prepared by an online tool, it caused more harm, ended up costing way more money than would have been the case if an attorney had been hired to do it properly. And that's really unfortunate because I used to hear some
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estate and trusts attorneys joke, well, you can pay me now or can pay me later. It's going to be a lot cheaper if you pay me now.
JG: So you've talked about online tools. There are other types of wills, Jill. What, for example, is a holographic will?
JM: Holographic will is a handwritten will and it is not permitted in all states. In the state of Tennessee, we did permit a holographic will, which would be a will entirely in the testator's handwriting signed by the testator. There would need to be two disinterested handwriting witnesses in open court to testify that that was the handwriting of the decedent.
And that's not even the hard part. The hard part is figuring out what the heck did the person mean by the words that were put on the paper.
JG: Oh boy.
JM: Because you might think that you are being so clear, but you're not viewing it. If you're not a trust and estates attorney, you are not viewing it from the lens of legal interpretation. And so the holographic wills that I have probated again cost way, way more than if they had been done properly by an attorney in the first place. They do cause a lot of interesting case law though. They are enjoyable from the legal perspective, but certainly not enjoyable when you see how they affect the family.
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JG: If you geek out on this stuff, I can totally see that, as a layperson, I don't want my estate to be interesting at all. I want it be very, very boring.
JM: A boring estate is the best kind of estate to have.
JG: Okay, what about other types of wills in the technology realm?
JM: So this is where people try to be super creative and think, OK, I'm just going to do my own thing. And how many times I can't count that a client would email me and say, in case I die this weekend, I want to make sure x, y, z. Well, if you want to make sure x, y, z, then we got to change your will. We're not going to do that via you sending me an email because although you think it's very clear and you're telling me that means nothing to the court.
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JG: Just because you're deciding to go bungee jumping this weekend.
JM: Yeah, so it of course depends on the state. And I have seen other situations. There was a case in Mississippi where an individual who did not have a will went into the hospital with COVID, COVID and his iPad, and he did not survive. So he wrote a will, or what he thought was one, on his iPad.
And he left everything to his surviving spouse. And actually, if anyone is interested in seeing what this will looked like, I'll link to it in the show notes. The interesting part is that this was a blended family. The decedent left everything to his wife, who was not the mother of his four children. And he wrote it with a stylus on the iPad and he signed it.
And there were disinterested witnesses to attest to the handwriting as being that of the decedent. And at the end of the day, it was admitted to probate and it was not ultimately contested. And the only reason I can see for that happening is there wasn't enough value for anyone to fight over it.
JG: Okay.
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JM: So that is not a lesson in just write your will on your iPad. That's not a good idea. Please don't do that. But it happened to work out in this situation. And this is me surmising based on what I've read, that there wasn't sufficient assets to argue over. It was a house that needed to be refinanced. So it was encumbered that needed to be dealt with.
And then separately, now I think saying this next one to people is gonna be a little bit frustrating when people hear it because the intent seems incredibly, incredibly clear. But this case out of Montana was from 2022. That was when an individual named Jesse Beck was on the side of the road and he was getting assistance from another driver with his vehicle. There had been an accident. Unfortunately, the law enforcement sheriff's deputy, who was arriving on the scene in response to the call, killed both Jesse and the other driver
JG: Oh my gosh.
JM: on the side of the road, accidentally hit them. And what Jesse had left behind was a cell phone video that he had intended, it appeared, to be his last will and testament. This was actually recorded four days prior to his death.
JG: Whoa, creepy.
JM: Jesse was not ill. This was a tragic accident. And he sent his brother Jason a phone video recording of himself in which he stated, “I, Jesse Beck, give all my possessions if anything happens to me whatsoever.
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JM: I give all my possessions, everything to Jason Beck, my brother." And then he says that someone else doesn't get anything.
JG: Yeah, we'll leave that part out. (chuckling)
JM: Yeah, we'll leave that part out. (chuckling)
But it was determined that that did not meet the standard necessary for it to be a will. And Jesse Beck had one child and because he did not have a will, everything passed to that one child.
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and not to his brother. So there are lots of opportunities in life to be creative and showcase that. Writing your own last will and testament is not the place to try and do that, even if you think that you've done it the right way or in a way that shows your intent. The law is not fair. The law is the law. And if you don't comply with it, then things can get messy, unfortunately. And that's the case with trusts and estates as well with other areas of the law.
JG: That's kind of my key takeaway here, Jill, is that something written on an iPad from a COVID ward or a video, those documents, well, call them documents, but those entities very clearly state the intent of the person before they pass away. But even if it is clear as day, clear as a bell that that is what that person wanted, if it hasn't gone through the proper legal proceedings, it doesn't matter.
JM: Right. If it hasn't gone through the proper legal procedures, so for example, I mentioned the estate of Bill Morris earlier, that was a signed will written by an attorney. There was an affidavit by two witnesses to it, but it wasn't exactly what the law required. So it did not count.
And unfortunately, that's how it goes. But the reason it goes like that is because these procedures are in place ostensibly to protect us and what the court and legislature determines is the appropriate method for transferring properly
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takes into consideration things like undue influence and whatnot. There are just a lot of things that we can't necessarily be cognizant of all the time, but these procedures are in place for better or for worse to do the best that we can as a whole in dealing with these situations. And the legal system is not necessarily the place to be doing one-off tricks.
JG: Okay so Jill you mentioned you are now in Michigan but you are not practicing. How can you help with your business Oversimply, LLC?
So I've started this new business here in Michigan, as you know, because we met at that 1 Million Cups event for small business owners. And what I do is act as a legal interpreter, a legal guide, a liaison, and work directly with your attorneys to make sure that you're getting what you want from these services and to kind of make sure that nothing gets lost in translation.
I can also set you up with an attorney if you don't know one yourself, because I know that's part of the hassle. Really anything that might be hindering you that is overwhelming because this isn't your area of expertise, let me know. I offer 15-minute consultations for free. You can sign up on my website, which is just oversimplyllc.com.
There isn't ever anything to be embarrassed about in what you're asking because I'm not embarrassed when I ask questions of experts in areas that I am totally unfamiliar in. So we all do what we do the best we can, but we can't know how to do everything.
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JG: That is so true. I go back to the knee surgeon analogy. You have taught me a lot in the short time we've known each other about estates and estate law and I think I've taught you a thing or two about podcasting.
JM: Yeah, so thanks, Jon, for helping with the conversation today. It's always really helpful to have another person asking questions and make sure that we're covering all the right topics. But as far as podcasts go, if someone wants to get in touch with you, what is the best way for them to do that?
JG: So my website and my social media are all the same. It's my initials, JAG. So JAG, JAGin Detroit.com. J-A-G-I-N-D-E-T-R-O-I-T.com. If you want to link to it in the show notes, Jill, that'd be great. And just, you can find me and all my contact info on my website if you have any questions about podcasting, whether it's starting a podcast from scratch or improving your podcast that's already established or about the podcasting industry in general. Thank you for the opportunity.
JM: And also editing podcasts, I don't know if that would fall within what you just said, but that is what you do for me mostly. And I am so grateful for it and it takes a huge burden off my plate. And I'm always, I’m just really impressed with the quality of what you deliver. So that's another option too that you can use Jon for.
JG: No, and I really appreciate you saying that. And I know from editing your podcast you offer practical takeaway at the end of each episode. What is your takeaway for today?
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JM: Well, for today, because we talked a lot about assets and how they're titled and how they might pass, there's going to be a free download and we're gonna link to it in the show notes to help you get your assets in order and help you understand the full scope of what you have financially. Now, like with anything else, if you do not have the information to fill out this entire form when you first sit down with it, that's fine, don't fill out the entire form, but please fill out what you know, because what you leave for someone is always better than leaving nothing. And do little bits at a time. And again, if you have questions, reach out to me. There is no shame in not knowing any of this or feeling like you're totally disorganized because you're probably just like everybody else and maybe even better if you're actually thinking about getting things straight.
JG: Well, Jill, can tell you that I have learned a lot in this hour or so that we spent together. again, not knowing what I didn't know was a start and now having a better idea of what I don't know, definitely we want to go to a professional to set this up for myself and my wife and any future dogs too.
JM: Exactly. And you know, you need a professional for your estate documents. You need a professional for your podcast. Don't try to be a Renaissance man or woman. There are people who can help you out.
JG: I like that.
JM: All right. Thanks.
Before we wrap up, I want to remind you that while I am an attorney, I'm not your attorney. The Death Readiness Podcast is for educational purposes only and should not be considered legal advice.
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For legal guidance tailored to your unique situation, I encourage you to consult with a licensed attorney in your state. To learn more about the services I offer, you can visit oversimplyllc.com.
April: Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. My mom always says that death readiness isn't just about planning, it's about the people you leave behind and the legacy you create for them. We hope today's episode helps you think about how to take care of yourself and your loved ones, now and in the future. If you liked what you heard today, share this episode with someone you care about. Follow our show for free on Apple Podcasts, Spotify, YouTube, or wherever you're listening right now.
