Episode 89: Why Your Original Will Matters More Than You Think
Episode 89
Host: Jill Mastroianni
Why Your Original Will Matters More Than You Think
Have you ever wondered whether a photocopy of your Will is enough?
In this episode of The Death Readiness Podcast, estate planning attorney Jill Mastroianni explains why the answer is often no. You'll learn what happens when an original Will can't be found, why courts may presume it was intentionally destroyed, and how that one missing document can completely change who inherits an estate. Along the way, Jill shares two real court cases, including a Tennessee probate dispute that became a true crime story, and explains the practical steps you can take to protect your own estate plan.
What You’ll Learn in This Episode
· Why an original signed Will matters more than a photocopy or PDF.
· The legal presumption that can arise when an original Will is missing.
· What it means to die intestate and how state law determines who inherits.
· The difference between probate and non-probate assets.
· Why simply signing your Will isn't enough—you also need to make sure someone knows where the original is.
· A Tennessee probate case involving a missing Will, murder allegations, and the state's slayer statute.
· Why probate litigation often begins with one powerful emotion: the belief that something wasn't fair.
· A real client story demonstrating how honoring a loved one's wishes sometimes means receiving less, not more.
Resources & Links
Watch this episode on YouTube: https://youtu.be/RIdWNpQemLQ
Tennessee Estate Planning: https://www.deathreadiness.com/estate-planning-solution
Tennessee Probate: https://www.deathreadiness.com/probate-solution
Need to Update Your Tennessee Estate Plan? Learn more about Jill's flat-fee Tennessee estate planning services: https://www.deathreadiness.com/estate-planning-solution
Free Probate vs. Non-Probate Assets Infographic
Download the infographic referenced in this episode to understand which assets pass under your Will and which transfer automatically outside of probate. https://www.deathreadiness.com/probate-infographic
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
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I’m going to start by asking you a question – where is your Will? Not a photocopy or a pdf but the original signed paper document. Today I explain why that simple question matters, how the law treats a missing original Will, and why one Tennessee probate case turned into a true crime story that no one saw coming.
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
I love listening to podcasts while I run, walk, drive, or even fold laundry. I have a pretty small rotation, and most of them are about podcasting, marketing, or running a solo business. And whenever my daughter and I are in the car together, we usually put on a true crime podcast.
Recently, though, I had about an hour's drive and I’d run out of my usual episodes, so I decided to listen to Mel Robbins. She's incredibly smart and an excellent interviewer, but I sometimes leave her podcast feeling like I need to improve...well...everything. My physical health. My mental health. My productivity. My relationships. It feels like a lot.
Despite that, I decided to listen to Mel Robbins’ interview with Dr. Marc Brackett, who studies emotional intelligence. I didn't hear the entire conversation, so I may not be quoting him perfectly, but one idea stuck with me, the idea that: Anger often comes from a perceived injustice. And I’ve been thinking about that a lot.
Because in my career, every argument over a Will, every trust dispute, every probate fight, it all comes down to that one thing, perceived injustice. Everyone believes something unfair happened. Someone thinks they didn't get what they deserved, believes the decedent's wishes weren't honored or that another family member manipulated the situation.
The legal issues may be different, but the emotional starting point is often the same: This isn't fair. Recently, I met with a new client. I'll call her Alice. Alice wasn't sure whether she needed to update her Will, so I asked her to send me a copy. That's perfectly fine—I don't need to review the original document to advise a client; in fact, I don’t want to be responsible for an original document in my possession.
But I do always ask one follow-up question. “Do you know where the original Will is?” Alice said she did. It was in a folder somewhere. When we met again, I asked whether she'd found it. She hadn't.
She wondered if maybe her former attorney still had it. Unfortunately, that attorney had retired, and if the original Will had ever been in his possession, no one knew where it was now.
So...is that really a problem? Isn't a copy enough? In Tennessee, usually not.
If the original Will can't be found after someone dies, Tennessee law starts with an important presumption: that the person intentionally destroyed their Will because they wanted to revoke it. Unless someone can prove otherwise, the court treats the person as though they died without a Will—a legal term called dying intestate.
And if someone dies intestate, state law, not the missing Will, determines who inherits the person's probate assets. Before we go any further, let me quickly explain what I mean by probate assets. Probate assets are generally the things you own in your individual name that don't already have a beneficiary designation, transfer-on-death designation, or another automatic way to pass at death. I’m going to link in the show notes to a really helpful infographic I created that shows the types of property that pass via probate and those that don’t.
Probate assets are the assets controlled by your Will—or, if there is no valid Will, by your state's intestacy laws. For Alice, those two outcomes are dramatically different. Alice is 81, single, has no children, and both of her parents have passed away. She had two sisters, but only one is still living.
If Alice died without a valid Will, her probate estate would be divided equally between her surviving sister and her nephew, the only child of her deceased sister. But that's not what Alice wants. Her Will leaves most of her estate to close friends. Yes, her sister and nephew receive something, but they certainly don't receive everything.
If Alice's original Will can't be found, and no one can overcome the legal presumption that she revoked it, many of the people she intentionally chose to remember simply won't inherit anything at all. So here's my practical takeaway: don't just sign your original Will. Make sure someone you trust knows exactly where it is. Ideally, your Executor. Because if no one can find the original when it's needed, everything you carefully planned probably won’t happen.
And if you're sitting there wondering, “I'm not actually sure where my original Will is,” don't ignore that feeling. It's a surprisingly common problem, and it's much easier to solve while you're alive than after your family is trying to settle your estate. If you're in Tennessee and you're wondering whether your estate plan still reflects your wishes, I'd be happy to help. You can learn more at DeathReadiness.com/solutions. That’s deathreadiness.com/solutions.
Let me show you what a missing original Will looks like in real life.
I'm going to tell you about two cases—one from Michigan and one from Tennessee—where no one could find the original Will. And if you enjoy true crime, make sure you stick around for the Tennessee case. It starts as a probate dispute and ends somewhere no one expects.
The first case takes place in Michigan and starts the way Alice's story could have ended. This case reminds me of Alice because, once again, the Will said something very different from what intestate succession would have done.
Robert Hughes died, and shortly afterward, his sister, Randa, asked the probate court to appoint her as personal representative of what she said was his intestate estate—in other words, that Robert had died without a Will. Under Michigan law, that would have made Randa the sole heir. But seven days later, someone else came forward.
Thomas Dunn told the court that Robert had, in fact, signed a Will. According to Thomas, Robert had entrusted him with the original years earlier, but it had been destroyed in a house fire. Fortunately, Thomas said, he still had an electronic copy.
And here's why that mattered. Robert had a biological son named Steven. Steven had been adopted by another family, so under Michigan's intestacy laws, he was no longer considered Robert's legal heir.
If there was no valid Will, Steven inherited nothing. But under the copy of the Will Thomas produced, Steven was a beneficiary. So the question was whether the court believed the original had been accidentally destroyed or whether Robert himself had destroyed it because he wanted to revoke it.
The probate court concluded there wasn't enough evidence to overcome the legal presumption that Robert had revoked his Will. Thomas appealed. The appellate court agreed with the probate judge. Robert was treated as though he had died without a Will, and his sister inherited everything in his probate estate.
The original probate petition was filed in September of 2024. The appellate court didn't issue its decision until just last month, nearly two years later. We often think of estate litigation as financially expensive, and it certainly is, but it's expensive in another way, too. It costs time. Sometimes years.
Now let me tell you about a Tennessee case where a missing original Will became just one chapter in a much larger story. On March 13, 2003, David Leath was found shot to death in the bedroom of his Knoxville home. Almost immediately, suspicion fell on two women—his wife, Raynella and his daughter from a previous marriage, Cynthia. Each accused the other of murder.
And in the middle of all of that...David's original Will was missing. Three years later, Raynella asked the probate court to accept a copy of David's 1996 Will. Cynthia objected because whether that copy was accepted determined who inherited the estate.
Under the copy of the Will, Raynella inherited almost everything. If there was no valid Will, Tennessee law split the probate estate equally between Raynella and Cynthia. Fifty-fifty.
But remember the rule we talked about earlier. If the original Will is missing, Tennessee presumes the person destroyed it on purpose. It’s the same rule as in Michigan. That means Raynella had to convince the court that David never intended to revoke his Will. That's a difficult burden.
Raynella needed to prove by clear and convincing evidence that the original had simply been lost or destroyed against David's wishes. She couldn't do it. The court ruled that David died intestate.
But remember how I told you Raynella and Cynthia accused each other of murder? Seven years after David's death, the story took another turn. In 2010, Raynella was convicted of first-degree murder for killing David and sentenced to life in prison. Prosecutors also accused her of murdering her first husband, whose death had originally been ruled an accident involving a cattle stampede while he was terminally ill with cancer.
And suddenly, the probate case changed again. Because Tennessee has what's called a Slayer Statute. The basic idea is simple. You don't get to inherit from someone you intentionally kill. If the law determines that you killed the person, you're treated as though you died before they did. That means no inheritance. No life insurance. No retirement accounts. Nothing. You can't profit from your own wrongdoing.
Except that conviction wasn't the end either. Years later, a judge granted Raynella a new trial after finding the original trial judge had been impaired by pain medication. During the second trial, the judge ruled there wasn't enough evidence to convict her. The murder conviction was set aside. The woman who had once lost everything because of the Slayer Statute walked free.
Remember what I said at the beginning of this episode? Anger often comes from a perceived injustice. That's absolutely what I see in probate litigation. Most people believe they're fighting for what's fair.
I'm representing the executor in a Tennessee probate estate where we only had a copy of the decedent's Will. Legally, if that copy were not accepted, the executor, who also happened to be the decedent's only surviving sibling, would have inherited everything through intestate succession.
Instead of requiring a beneficiary under the Will to overcome the legal presumption that her sister had intentionally destroyed her Will, intending to revoke it, my client reviewed the copy of her sister’s Will and said, “I believe this is what my sister wanted.” So she asked the court to admit the copy. Without the Will, she could have received her sister’s entire probate estate. But under the copy of the Will, she received about one-third of what she otherwise would have inherited.
Earlier I said anger often comes from a perceived injustice. For my client, the injustice wouldn't have been receiving less. The injustice would have been receiving more than her sister intended. Many of the probate stories I tell involve conflict and litigation.
Family members are convinced they've been wronged. But every once in a while, someone reminds me why I still love this work. They choose fairness over self-interest. And sometimes, that's the best estate planning story of all.
If this episode made you realize it's been years since you looked at your own estate plan, or you're not even sure where your original documents are, consider this your reminder. A good estate plan isn't just about signing documents. It's about making sure the people you love can actually carry out your wishes when the time comes. If you live in Tennessee and you'd like my help, you can learn more about working with me at DeathReadiness.com/solutions. That’s deathreadiness.com/solutions.
Thanks for listening today.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
