Episode 91: Why Reading the Will Looks Nothing Like in the Movies
Episode 91
Host: Jill Mastroianni
Why Reading the Will Looks Nothing Like in the Movies
You’ve seen the scene in movies: the family gathers in a lawyer’s office, the Will is dramatically read aloud, and everyone discovers who inherited what. Real life looks very different.
In this episode, Jill Mastroianni explains what actually happens to a Will after someone dies, who receives a copy, why being an heir-at-law isn’t the same as being a beneficiary, and what it really means when a Will becomes “public record.” She also explains why reading someone’s Will may give you only part of the story of what happens to their assets after death.
What You’ll Learn in this Episode
Why there isn’t a formal “reading of the Will.” In real life, the Will is typically filed with the probate court and copies are mailed to beneficiaries and heirs-at-law.
Why your Will doesn’t control everything you own. A Will controls probate assets, but assets with beneficiary designations or certain forms of ownership pass outside of the Will entirely.
Why inheriting “everything” under a Will might not mean much. If most of someone’s assets pass through beneficiary, payable-on-death or transfer-on-death designations, very little may actually pass under the Will.
What a probate asset is. Generally, a probate asset is an asset that does not automatically pass to someone else at death because of the way it is titled or because of a beneficiary designation.
Why the original Will matters. In Tennessee, a missing original Will can create significant problems, including a presumption that the person destroyed the Will intending to revoke it.
The difference between a beneficiary and an heir-at-law. A beneficiary inherits because the Will says they inherit. An heir-at-law is someone who would inherit under state law if there were no valid Will.
What happens when probate begins. The attorney gathers information, prepares a petition, submits the Will to the probate court and asks the court to officially appoint the Executor.
What Letters Testamentary actually do. Being named Executor in a Will does not automatically give someone authority to administer an estate. The court must appoint the Executor, who then receives documentation establishing that authority.
How you might actually find out what a Will says. Instead of gathering in a lawyer’s conference room, you may simply receive an envelope containing a probate petition and a copy of the Will.
What it means when a Will becomes public record. “Public” doesn’t mean the Will is broadcast to the world. It means someone may be able to obtain a copy from the probate court.
Why Wills can be difficult to understand. Wills often contain precise legal language and standardized “boilerplate” provisions designed to address circumstances that may arise after death.
Whether the estate’s assets become part of the public record. An inventory of probate assets may become part of the public court record if one is required and filed, but the requirement to file an inventory can sometimes be waived.
Why communication matters while you’re alive. A Will is a legal document designed to accomplish legal objectives. It may not be the best place to explain your decisions, communicate your reasoning or leave one final message for the people you love.
Resources and Links
Watch this episode on YouTube: https://youtu.be/OM5nvNSixqQ
How Assets Pass at Death Infographic
Download the infographic referenced in this episode for a visual explanation of which assets are controlled by your Will and which pass outside of probate. https://www.deathreadiness.com/probate-infographic
Episode 89: Why Your Original Will Matters More Than You Think
Learn what can happen when your family can find a copy of your Will after your death but no one can locate the original. https://www.deathreadiness.com/podcast/89
Tennessee Estate Planning with Jill Mastroianni
A Will is only one part of an estate plan. Jill works with Tennessee clients to consider how their Wills, beneficiary designations, asset ownership and other estate planning documents work together. https://www.deathreadiness.com/solutions
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
Learn more about Jill’s solutions
Subscribe to the Death Readiness Dispatch!
Ask a question for Tuesday Triage
Did you enjoy this episode? Share it with someone you care about.
-
You’ve seen it in the movies: the family gathers in a lawyer’s office to hear the Will read aloud and find out who gets what. But does a “reading of the Will” actually happen? Today, I walk you through what really happens to a Will after someone dies, who gets a copy, why being an heir isn’t the same thing as being a beneficiary, and why the Will may tell you only part of the story.
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.
It’s not uncommon for people to fantasize about the messages they might leave behind for loved ones, or maybe even not-so-loved ones, after they die. My dad has apparently thought about this, too. When I was a kid, I sometimes played racquetball with him. I only played when he took me to the gym, and racquetball was pretty much the only thing he did there.
I loved it and I was incredibly competitive. As good as I was at being competitive, my dad was at being a dad. He knew exactly how much I would love beating him. What I didn’t know was that my dad normally played racquetball left-handed. But whenever he played against me, he used his right hand, his non-dominant hand.
Eventually I grew up, we stopped playing racquetball, and I pretty much forgot about it. My dad did not. Apparently, he spent years imagining the moment when he would finally reveal his secret to me. He pictured my shock when I learned that all those childhood victories weren’t quite what I thought they were. Eventually, he couldn’t wait any longer.
One day, when I was an adult, he told me. “You know all those times we played racquetball when you were a kid? I was playing with my right hand.” My response? “Oh.” This was, apparently, not the reaction he had been hoping for.
He told me he had actually considered keeping the secret for the rest of his life and recording a video to be played after he died. That way, he could make his big posthumous reveal and, presumably, I would finally have the appropriately shocked reaction he had been imagining for years. Except, of course, he wouldn’t actually get to see it.
And I think people sometimes imagine their Wills a little like my dad imagined that video. They picture the family gathered around a table in a stately lawyer’s office. The lawyer opens the Will and begins to read. Someone discovers they’ve inherited everything. Someone else discovers they’ve been disinherited.
Everyone reacts. It’s dramatic. It’s cinematic. And it’s also generally not how any of this works. So, who actually does the “reading of the Will”? We’ll get there. But first, there’s something you need to understand, because it changes how much that Will may actually matter. Your Will does not control everything you own. It only controls your probate assets.
So, what’s a probate asset? Generally, a probate asset is something you own at your death that does not automatically pass to someone else because of the way the asset is titled or because you’ve named a beneficiary to receive it.
Let me give you an example. My Will says that if my husband survives me, everything I own goes to him. And that’s not hypothetical. That is actually what my Will says.
I also own a term life insurance policy on my life. With life insurance, I get to name a beneficiary who will receive the death benefit when I die. In reality, I’ve named my husband. But let’s pretend I named my best friend Lauren instead.
If I die, who gets the life insurance? Lauren does. It doesn’t matter that my Will says everything goes to my husband. The life insurance has a beneficiary designation, so it passes directly to Lauren. It never becomes part of my probate estate, which means my Will doesn’t control it.
I could even put a sentence in my Will that says, “Under absolutely no circumstances should my best friend Lauren receive anything I own.” Lauren would still get the life insurance. The beneficiary designation controls.
This is one of the most important concepts I want you to understand about estate planning: your Will does not necessarily tell you who gets everything you own when you die.
I’m going to link to an infographic in the show notes that gives you a visual of the different ways assets pass at death and whether your Will controls them. If you’re learning about estate planning, you’ll find it really helpful. And if you’re an estate planning attorney or financial advisor, it’s also a great tool to use when explaining this concept to clients.
Now, why am I spending so much time on this in an episode about the reading of a Will? Because imagine we actually did have that Hollywood-style Will reading. Everyone gathers in the lawyer’s office. The lawyer dramatically opens the Will and announce that you are the sole beneficiary. You get everything.
Sounds pretty good, right? Well, maybe. Because “everything” under that Will might be almost nothing. I once prepared an estate plan for a woman who intentionally structured most of her assets to pass outside of her Will. Her life insurance, retirement accounts and investment accounts passed through beneficiary, transfer-on-death or payable-on-death designations to members of her family.
But under her Will, she left her probate estate to members of her predeceased husband’s family. So imagine we had held that dramatic reading of the Will. Her husband’s family might have heard, “You get everything,” and assumed they were receiving most of her estate. They weren’t. Most of her assets were passing outside of the Will to her own family.
Now, I’m not suggesting this is an approach I generally recommend. But it was intentional. It was what she wanted to do. And it illustrates the point perfectly: if you only looked at her Will, you would have had a very incomplete picture of what was actually going to happen to her assets when she died.
And this is something I spend a lot of time talking about with my estate planning clients. A Will is only one piece of an estate plan. If you’re in Tennessee and we work together, we’re going to talk about how your assets are actually titled, who you’ve named as beneficiaries, and whether all of those pieces work together.
If you have a Will but you’re not entirely sure what it actually controls, or you’re ready to create an estate plan from scratch, you can learn more about working with me at deathreadiness.com/solutions. That’s deathreadiness.com/solutions.
So, with that important caveat out about probate assets of the way, let’s get back to the question we started with. What actually happens to the Will after someone dies?
In my practice, usually, it starts when someone contacts me to tell me that a loved one has died. One of the first things I need is the original Will, if there is a Will at all. And notice that I said original Will. That matters in Tennessee. Under Tennessee law, if the original Will was last known to be in the deceased person’s possession and no one can find it after death, there’s a presumption that the decedent destroyed it intending to revoke it.
I did an entire episode about missing original Wills—Episode 89, “Why Your Original Will Matters More Than You Think”—and I’ll link to that in the show notes. But for today, let’s assume that there is a Will and we have the original.
What happens next? Do I summon the beneficiaries to my office, close the blinds, gather everyone around a conference table and begin reading? Nope. I pull out a checklist.
It’s not quite as cinematic as you might have imagined. The checklist tells me all of the information I need to prepare the paperwork to open the probate estate. Usually, the person I’m talking to is the person named as Executor in the Will. The Executor is the person responsible for managing the probate estate—collecting the assets, paying expenses and ultimately distributing what remains according to the terms of the Will, all under the court’s supervision.
But being named Executor in the Will doesn’t automatically give you the legal authority to start acting as Executor. The court still has to appoint you. And to make that happen, I need information. Some of it is pretty routine: the decedent’s full legal name, address, age, date of birth, date of death, whether they were married and whether they had children.
I also need information about the beneficiaries—the people or organizations named in the Will to receive something. I need to know who they are, how they were related to the person who died, whether they’re adults or minors, and where they live.
And then I need information about another group of people: the heirs-at-law. This is where people sometimes get confused, because an heir and a beneficiary are not necessarily the same thing. A beneficiary is someone who inherits because the Will says they inherit. An heir-at-law is someone who would inherit under state law if there were no valid Will.
For example, if I died without a Will, my husband and my two children would be my heirs-at-law and would inherit under Tennessee’s intestacy laws. But I do have a Will. And assuming my husband survives me and my Will is valid, my Will says that my husband receives my probate estate. So my children can be my heirs-at-law without being beneficiaries under my Will. That distinction is going to become important in a minute, so hang onto it.
Once I have all of this information, I prepare a petition asking the probate court to open the estate and officially appoint the person named in the Will to serve as Executor. If the court appoints that person, the court issues something called Letters Testamentary. These Letters Testamentary are basically the Executor’s proof of authority. They’re what allow the Executor to start acting on behalf of the probate estate—collecting probate assets, dealing with financial institutions and administering the estate.
Now here’s where we finally get to what actually happens to the Will. I attach a copy of the Will to the petition as an exhibit. I generally file the petition electronically with the probate court, and then I separately deliver the original Will to the probate court.
So the first official audience for the Will isn’t a room full of expectant family members. It’s the probate court. And then other people start receiving copies in the mail.
The beneficiaries under the Will receive notice that the petition has been filed. I also generally send a copy of the petition to the heirs-at-law, even if they aren’t beneficiaries under the Will. Some probate judges want both groups to receive notice, and as a practical matter, it makes sense.
Instead, if you’re a beneficiary under a Will or an heir-at-law of an estate I’m probating, you might go to your mailbox one afternoon and find an envelope from me. Inside will be a cover letter explaining why you’re receiving it, a copy of a petition filed with the probate court and, attached to that petition, a copy of the Will.
You’ll flip through the paperwork. And that may be the moment you find out what the Will says. It’s a little less Hollywood but potentially just as surprising. There’s one other piece of this that’s important to understand. Once that Will is filed with the probate court, it becomes part of the public record.
Estate planning attorneys say that phrase all the time: “Your Will becomes public record when it goes through probate.” But what does “public record” actually mean? It does not mean the probate court publishes your Will in the newspaper or posts a list on social media announcing who got the house and who got disinherited. It means that the Will is part of the court record.
So if someone wants to see it, they can contact the probate court in the county where the estate is being administered and ask how to obtain a copy. There may be a process to follow and a fee to pay, but you don’t have to be a beneficiary or family member just to request a public court record.
That’s one reason you’ll sometimes hear privacy mentioned as a reason for avoiding probate. But I also want to put that concern in perspective. “Public record” does not necessarily mean “widely publicized.” Your neighbors aren't automatically getting copies. Your Will isn't showing up in everyone’s mailbox. Someone generally has to know that the probate proceeding exists, figure out where it was filed and take the steps necessary to obtain the court record.
So yes, it’s public. But there’s a pretty big difference between something being publicly accessible and something being publicly broadcast.
Okay, so, at this point, we’ve answered at least part of our original question. There isn’t going to be a formal reading of the Will. Instead, the Will gets filed with the court. Beneficiaries, and potentially heirs-at-law, receive paperwork that includes a copy of the Will. And anyone else who is curious enough may be able to obtain it from the public court record.
So let’s say you’re a beneficiary under the Will—or maybe you’re an heir-at-law, someone who would have inherited if there were no valid Will—and you’ve just received this envelope from someone like me.
You open it. You find the Will. And now you have to figure out what the heck the Will says. Unfortunately, it probably isn’t going to read like a letter that says, “Jeremy gets the house. April gets the car. Lauren gets my collection of dogs.”
Wills generally aren’t written that way. Estate planning attorneys use very precise language because we’re trying to account for lots of different possibilities. What happens if a beneficiary dies before you? What happens if a beneficiary is a minor? What happens if someone disclaims an inheritance? What happens if a particular asset no longer exists when you die?
And then there’s what lawyers call “boilerplate.” Boilerplate is standardized language that appears in many legal documents because it addresses situations that may not be unique to you, but still need to be addressed. Boilerplate includes things like definitions, administrative powers, tax provisions and rules about what happens if something doesn’t go exactly according to plan.
It may be standard language, but that does not necessarily make it easy to understand. So instead of sitting in a stately law office while an attorney dramatically reads, “I hereby leave my entire fortune to...,” you may be sitting alone at your kitchen table with a fairly substantial stack of paper and a lot of questions.
For reference, the most recent Will I drafted for a client was about 30 pages long. Now, I wouldn’t call that particular Will simple. But the point is, you shouldn’t necessarily expect to open a Will, skim a paragraph or two and immediately understand exactly who gets what.
And I think this is where the reality is very different from what we see in movies. The Hollywood version gives you a lawyer, gathered family members and an immediate explanation.
The real-life version might give you an envelope, a 30-page legal document and your kitchen table. It can be a little lonely, confusing, and, depending on what the Will says, it can still be every bit as emotional.
And this is one reason I care so much about making sure my clients understand their estate planning documents while they’re alive. If you work with me to create your estate plan in Tennessee, I’m not just going to email you a stack of documents and ask you to sign them. We’ll sit down together over Zoom, I’ll share my screen, we’ll walk through the important provisions, and you’ll have the opportunity to ask questions about what all of it actually means.
Your family may someday be reading these documents at their kitchen table. I want you to understand what you’re leaving them and why. If that sounds like the kind of estate planning process you’re looking for, you can learn more at deathreadiness.com/solutions. That’s deathreadiness.com/solutions.
So what do you do if you receive a Will and don’t understand it? If you’re a beneficiary, you can reach out to the attorney handling the probate estate. That attorney may be able to give you an overview of the provisions that affect you and explain what happens next.
But remember our earlier conversation about heirs-at-law and beneficiaries? This is where that distinction matters. If you’re an heir-at-law but you are not a beneficiary under the Will, you’re in a very different position.
You may have received a copy of the Will because you’re someone who would inherit if there were no valid Will. But that doesn’t mean you’re entitled to all of the information about the probate estate.
I dealt with this situation a few years ago. I was handling the probate estate of a woman who had been estranged from her two adult sons. A few months before she died, she and her sons had started communicating again.
But during that time, she never changed her Will. Her sons were not beneficiaries. Because she wasn’t married, though, her sons were her only heirs-at-law. If she had died without a valid Will, they would have inherited her probate estate. So when the probate proceeding began, I sent each son, as an heir-at-law, a copy of the petition and the Will.
One of them called me. He wanted to know what was actually in his mother’s estate. And I couldn't tell him. He wasn’t entitled to information about the estate's assets from me.
If he wanted legal advice about his own rights or whether he had grounds to challenge the Will, he needed his own attorney. There is, however, one potential way information about the probate assets can become publicly available, and it brings us back to that phrase we talked about earlier: public record.
An Executor may be required to file an inventory with the probate court identifying the probate assets. If an inventory is filed, it becomes part of the court record, which means anyone may be able to obtain a copy from the probate court, even if that person isn't a beneficiary.
But there's an important catch. The requirement to file an inventory can be waived, and the Wills I draft generally include that waiver. Many attorney-drafted Wills do. So if the inventory requirement has been properly waived, there may never be a public inventory listing the probate assets.
Which means you could be an heir-at-law, have a copy of the Will sitting right in front of you, know that you would have inherited if there were no Will, and still not know exactly what is in the probate estate.
And that brings us a long way from the scene we started with. There’s no mahogany conference table. No lawyer dramatically reading the Will aloud. No room full of relatives waiting to hear who got what.
The reality is much more ordinary. The Will gets filed with the court. Copies get mailed. People read them at their kitchen tables. They call lawyers with questions. And sometimes, even after reading the Will, they still don't know the whole story.
At the beginning of this episode, I told you that my dad once considered saving his racquetball secret for a video that I would watch after he died. He imagined the reveal, my reaction, and this one last surprise he could leave behind. Fortunately, he got impatient. He told me while he was still alive.
And even though my reaction was a deeply disappointing “Oh,” I’m glad he did. Because maybe that’s the bigger lesson here. We put a lot of weight on the documents we leave behind. And those documents matter a lot. But a Will is a legal document. It’s designed to transfer probate assets, nominate an Executor and provide instructions that a court can enforce. It isn’t the best place to explain your decisions, tell your family what you were thinking, or deliver one final message.
So if there’s something you want the people you love to know, maybe don’t save it for after you die. Go ahead and tell them now. And if it turns out you’ve secretly been letting your highly competitive daughter beat you at racquetball for years, prepare yourself. You may have been imagining a much bigger reaction than you’re actually going to get.
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.
