Episode 38: Why You Need (or Don’t Need) a Will

Episode 38

Host: Jill Mastroianni

Why You Need (or Don’t Need) a Will

Most people think a Will is the foundation of an estate plan but not everything you own is controlled by it. In this episode, Jill Mastroianni breaks down what a Will actually does (and doesn’t) cover, how to tell which of your assets are “probate assets” controlled by your Will, and why understanding the distinction between probate and non-probate assets could change the way you approach your estate plan.

What You’ll Learn in This Episode

The difference between probate and non-probate assets, and why it matters.

The three ways assets pass at death:

• By contract: through beneficiary designations or payable-on-death forms

• By operation of law: through joint ownership with survivorship rights

• By Will: through the probate process.

Use two simple questions to determine whether something you own is a probate asset:

#1: Am I the sole owner of the asset?

#2: Does it pass by contract?

Real-life examples of how these rules play out with:

• Jill’s IRA (passes by contract)

• Her house (passes by operation of law)

• Her mother’s antique ring (passes by Will)

What happens when you die without a Will (and why the government does not take everything).

State-by-state differences in intestate succession, including Tennessee and Michigan examples.

How even a simple Will can make life easier for the people you leave behind.

Key Takeaways

A Will only controls your probate assets, not everything you own.

Beneficiary designations and joint ownership override your Will.

If you die without a Will, your state’s intestacy laws decide who inherits your probate property.

Having a Will is less about wealth and more about reducing stress and conflict for your loved ones.

If you don’t have a Will, you should still:

·         Organize your financial and asset information.

·         Sign a healthcare proxy and advance directive and fill out a medical information sheet.

·         Complete a personal information sheet and tell someone you trust where to find it.

Resources & Links

    Estate Planning Support Services: Make the process clear, organized, and doable, from finding an attorney in your state to understanding your documents.

         Episode Mention: Why You Need (or Don’t Need) a Trust: Listen here.

         Financial Information Spreadsheet: Click here.

         Medical Information Sheet & Advance Directive Forms: Access state-specific forms

         Personal Information Sheet: Click here.

         Submit a question for Tuesday Triage here.

Connect with Jill:

• Website: DeathReadiness.com

• Email: jill@deathreadiness.com 

• Learn more about Jill’s services

• Subscribe to the Death Readiness Dispatch!

• Submit a question for Tuesday Triage

Did you enjoy this episode? Share it with someone you care about.

• View Full Transcript

  Jill Mastroianni (00:00):

  One of the questions I’m asked most often is, “Do I need a Will?”My honest answer is: “I don’t know.”

  But by the end of this episode, you’ll have the tools to figure it out for yourself, whether you need a Will or not.

  Welcome to the Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni, former estate attorney, current realist, and your guide to wills, trusts, probate and the conversations no one wants to have. If your Google search history includes, “Do I need a trust?” “What exactly is probate?” and “Am I supposed to do something with mom’s Will?” you’re in the right place.

  (00:49) Back when my daughter April was about eight and we were living in Nashville, we were driving in the car listening to the radio when an ad came on for a Miranda Lambert concert.April immediately asked, “Can we go?”I told her the tickets were too expensive.A few seconds later, from the back seat, she asked, in this tiny, indignant voice, “Who even isshe?”

  She wanted to go so badly, but she didn’t even know who Miranda Lambert was. She didn’t even know what she wanted to go to.

  And that’s how a lot of people approach getting a Will. We think we’re supposed to have one. We feel guilty or anxious if we don’t. But we’re not totally sure what it’s for, or whether we actually need one.

  So, let’s start with the obvious question: “What even is a Will?”

  (01:40) A Will — or, more formally, a “Last Will and Testament” — is a legal document signed by the testator that explains what should happen to their probate assets after they die.

  Let’s unpack a couple of those words.

  The word testator comes from the Latin testari, meaning “to testify.” In today’s terms, it simply means the person creating the Will. So for my Will, I’m the testator. Well, technically, the female version is testatrix, but I prefer to use testator for everyone — it’s simpler.

  In a Will, the testator directs what should happen to their probate assets.

  Now, probate, that might be another fuzzy word. Probate is the legal process of validating a Will, paying debts, and distributing the person’s probate assets after death.

  And here’s something that surprises people: there’s going to be probate whether you have a Will or not as long as you have probate assets.

  (02:46) When I say probate assets, I mean the property that’s controlled by your Will if you have one, or, if you don’t have one, by your state’s law, which is called intestate succession.

  When you die, everything you own, all your assets, will pass in one of three ways:first, by contract; second, by operation of law, or, third, by your Will or trust.

  Let’s start with assets that pass by contract.These are things like your life insurance, retirement accounts, or any account where you’ve named a beneficiary.It also includes payable-on-death or transfer-on-death designations, the ones you might have set up on your bank or investment accounts.

  Next, assets that pass by operation of law.This usually means something you own jointly with someone else where the ownership itself includes a “survivorship” feature.For example, a joint bank account or a home owned with your spouse.When one owner dies, the surviving owner automatically becomes the full owner.

  (03:58) Assets that pass by contract or by law are not probate assets.

  But assets that pass by Willare probate assets. Those are the ones that go through the probate process we talked about earlier.

  Now, I’m not talking about trusts today. That’s a whole separate topic.If you want to learn more about when a trust might make sense and how it works, I’ll link to a previous episode in the show notes called “Why You Need or Don’t Need a Trust.”

  If you’re listening to this and thinking, “This all sounds important, but I have no idea where to begin,” you’re in good company.

  (04:39)Estate planning feels confusing because it’s written in a language most people don’t speak — legal.

  I designed my Estate Planning Support Services to change that.

  I help you translate the legal process into plain language, make decisions with confidence, and actually finish your plan, not just think about it.

  Together, we’ll get everything organized, find the right attorney for your needs, and make sure your wishes are clearly documented and easy for your loved ones to follow.

  You can learn more at deathreadiness.com/services. The link’s in the show notes.

  Because peace of mind isn’t about paperwork. It’s about knowing your family won’t have to guess what you wanted.

  (05:23) Now, if you’re wondering how to tell the difference between probate and non-probate assets, there are two simple questions you can ask about any asset you own:

  Question #1: Are you the sole owner of the asset?Question #2: Does the asset pass by contract?

  If you answer “yes” to the first question, you likely have a probate asset, unless you also answer “yes” to the second question. In that case, it’s probably a non-probate asset.

  Let’s walk through an example.

  I’ll start with my retirement account, my IRA.

  Question #1: Am I the sole owner?Yes, I am. My IRA is in my name only.

  Question #2: Does it pass by contract?Yes. My IRA is held with Baird, and I’ve completed their beneficiary designation form. I’ve even double-checked my statement to confirm it’s on file.

  I’ve named my husband, Jeremy, as the primary beneficiary.So, if Jeremy survives me, my Baird IRA passes to him by contract, not by my Will.

  That means my IRA is a non-probate asset.

  (06:37) Now, here’s where people get tripped up.

  Let’s say in my Will, I write:“I give my Baird IRA to my father, Carmen Mastroianni. Under absolutely no circumstances should my husband, Jeremy, receive my Baird IRA.”

  What happens?

  Jeremy still gets it.

  Because my IRA passes by contract, it doesn’t matter what my Will says. The Will only controls probate assets, and my IRA isn’t one of them.

  Next, let’s look at my house.

  But first I’m going to give you a little backstory.

  Less than a week ago, my husband and I bought a house, one with enough space for both of us to work from home without one of us being stuck in the bedroom. A huge win for both of us.

  Back when I worked at a general practice law firm, I did a lot of title work. So instead of just signing whatever’s put in front of me at closing, I actually review every document, especially the deed.

  I was particularly focused on this deed because my husband and I have different last names, and that sometimes leads people to assume we’re not married.

  (07:46) In Michigan, like in many other states, a tenancy by the entirety is automatically created when real estate is conveyed to a married couple at the same time. 

  You don’t have to say the words “husband and wife” in the deed for that to happen. 

  But just because something is legally true doesn’t mean it won’t cause a headache later. I’ve seen too many situations where families had to jump through hoops to prove what should have been obvious.

  When I reviewed our deed, I saw that the property was conveyed to “Jeremy Wells and Jillian Mastroianni” but it didn’t say we were married.

  Without that designation, if one of us dies, the survivor could still end up having to show not just a death certificate, but also proof that we were married at the time of the conveyance. And that’s unnecessary red tape.

  So, I asked for the deed to be updated before closing to make sure it said what it should have said all along, that we’re a married couple.

  (08:46) And here’s a quick aside: if you’re buying a house, don’t assume that just telling the title company you’re married is enough. I did that and it still didn’t make it onto the deed.

  Thankfully, I caught it an hour before closing and had them correct it before the seller signed.

  I like to be kind to my future self, or to my husband’s future self, depending on who dies first. Adding those few words could spare the survivor a lot of frustration later.

  Now, back to my two questions:

  Question #1: Am I the sole owner of the asset?Nope. I own our house jointly with my husband, under a tenancy by the entirety, which is just a fancy way of saying that, as a married couple, we own the home as one inseparable unit.

  When one of us dies, the other automatically becomes the sole owner. There’s no probate.

  Because I answered “no” to Question #1, we don’t even need to ask Question #2.

  If Jeremy survives me, our house is not a probate asset. It passes to him by operation of law.

  (09:55) So, let’s review.

  My IRA is not a probate asset if my husband survives me, because it passes to him by contract.I named Jeremy as the beneficiary on the form I submitted to Baird, who holds my IRA.

  My house is also not a probate asset if my husband survives me, because it passes to him by operation of law.We own it jointly, as husband and wife.

  But what about my mother’s antique ring, the one my dad gave me after she died?

  Let’s run it through our two questions.

  Question #1: Am I the sole owner of this asset?Yes, I am. The ring was a gift to me alone.

  Question #2: Does it pass by contract?

  No, there isn’t any kind of document associated with this asset.

  Rings don’t have beneficiary designations or payable-on-death forms.

  So this ring is a probate asset.

  It’s something that would be distributed according to my Will.

  (11:01) Most Wills include a paragraph that covers your tangible personal property, things like jewelry, art, books, and furniture.

  I have one of those clauses in my Will, and mine leaves everything to Jeremy.So, in this case, he would end up with the ring, too.

  Let’s go over what we just learned.

  There are three ways my husband, Jeremy, could inherit property from me if he survives me.

  First, my IRA passes to Jeremy by contract.I named Jeremy as the beneficiary on my Baird IRA.So if he survives me, he’s the person Baird is legally required to pay.Even if I wrote in my Will that Jeremy should NOT get my IRA, Jeremy still gets it.

  Second, our house passes to Jeremy by operation of law.We bought it together last week, we’re married, and our deed shows that.We own it in a tenancy by the entirety, a survivorship form of ownership.That means if Jeremy survives me, he automatically owns the house.

  (12:09) If I said in my Will that I didn’t want him to have the house, well… it might hurt his feelings, but it would have no legal effect. He still gets the house.

  Lastly, there’s my antique ring.That one’s different. It’s a probate asset.I own it individually, and it doesn’t have a beneficiary or payable-on-death designation.So if I don’t want Jeremy to get it, I can say that in my Will — and that instruction would matter.

  Now, let’s circle back to the original question of this episode:Do you need a Will?

  Everything we’ve just walked through helps answer that question, because now you understand which assets your Will actually controls, and which it doesn’t.

  (12:59) For me personally, if my husband survives me, my Will controls very little.

  But if he does NOT survive me, that’s when things change because the assets that were NOT probate assets suddenly become probate assets.

  Here’s what that looks like.

  Let’s go back to our house.If Jeremy dies before me, I inherit the house by operation of law, just like he would have inherited it from me.Once that happens, I become the sole owner.

  Now let’s apply our two questions:

  Question #1: Am I the sole owner of the asset?Yes.

  Question #2: Does it pass by contract?No.

  So if I survive Jeremy, our house becomes a probate asset, and at my death, it would be distributed according to my Will.

  (13:55) My Will does a lot of important work to make sure my kids are provided for in the way that’s best for them and we’ll unpack what that means in another episode.

  But for now, you know the difference between probate and non-probate assets — and that knowledge helps you decide how important a Will really is or isn’t in your own situation.

  So what happens if you have probate assets but you don’t have a Will?

  First, let’s clear up a big misconception:

  The government doesn’t just take everything.

  I’ve had many clients worry about this, so I want to set the record straight.

  Every state has its own law that determines how probate assets are distributed when someone dies without a Will. That process is called intestate succession.

  (14:47) And here’s another item worth clarifying: everything does not automatically go to the surviving spouse.

  Let’s take Tennessee, where I practiced, as an example.

  In Tennessee, if I were to die without a Will, Jeremy, my husband, would receive one-third of my probate assets, and our two kids would each receive one-third as well.

  That’s not ideal, for a lot of reasons.

  Here’s one of them:

  About a year after law school, I bought a house in Nashville, just in my name. When Jeremy later moved in, I never updated the title. That means the house was a probate asset.

  If I’d died without a Will after we adopted our kids, each of our minor children would have inherited a one-third ownership interest in that house.

  I’ve seen that exact situation play out in real life, and it’s messy and very sad.

  Suddenly, the surviving parent is sharing ownership of the family home with the kids, and the court has to appoint a guardian to oversee their share. It’s stressful, expensive, and completely avoidable with even a simple Will.

  (15:58) If you’re married, it might be really important to you that your spouse gets everything you own if you die. And that’s not guaranteed, even if you don’t have children.

  Why? Because every state’s intestacy law is different.

  Let’s take my current state, Michigan, as an example.

  In Michigan, your spouse only inherits all of your probate assets if you have no surviving descendants and no surviving parents.

  So let’s assume for a moment that I don’t have any children, but my husband and my dad are both living.

  If I die without a Will, my husband would be entitled to the first $150,000, plus three-fourths of whatever’s left of my probate assets.My dad would receive the other one-fourth.

  That might surprise a lot of people, and it’s exactly why having a Will can make such a difference.

  (16:57) Here are a few of the biggest reasons you might want to create a Will:

  #1: You’re married.You may think everything automatically goes to your spouse, but as we’ve just seen, it doesn’t always work that way.

  #2: You have minor children.You’ll want to name a guardian, someone you trust to raise your children — and decide who should manage the money they inherit, and for how long.

  #3: You want to make things easier for your loved ones.

  Having clear instructions, in the form of a well-drafted Will, can make things a heck of a lot easier for the people you leave behind.

  Whatever you do, please do it all the way and make it clear what you’ve done.

  (17:43) Now, if you’ve been listening to this episode thinking, “Okay, I probably need a Will,” let’s make sure you’re actually eligible to create one.

  #1: You have to be at least 18 years old.#2: You must have the mental capacity to sign a Will.

  And what does “mental capacity” mean in this context?It means you understand:• that you’re creating a document to give away your belongings after you die;• what you own and roughly how much it’s worth; and• who your family members are, or, as lawyers like to say, the “natural objects of your bounty.”

  So let’s return one more time to the big question: Do you need a Will?

  If you’re over 18 years of age and you do have mental capacity, then whether you create a Will or not is your choice.

  It’s a cost-benefit analysis.

  (18:43) If your probate assets are very minimal, or if you’re perfectly comfortable with how your state’s intestate succession laws would divide your probate property, and none of those inheriting are minors or individuals with special needs receiving means-tested government assistance, then maybe you decide to forego a Will. That’s a risk you can take.

  But even if you do decide to go without a Will, there are still a few important things I recommend doing:

  #1:Get your asset information organized.Someone will eventually be responsible for wrapping things up after you die. Do your best to make it easier on them. It’ll already be a hard time.I’ll link to a financial information spreadsheet in the show notes that you can fill out.

  #2:Sign a healthcare proxy and advance directive.Make sure the person you name knows your medical wishes and has your medical information.These forms are free so there’s no excuse not to complete them.I’ll include links in the show notes for state-specific healthcare proxy and advance directive forms, along with my Medical Information Sheet that you can share with your proxy.

  #3:Fill out a personal information sheet.This helps loved ones access essential information in an emergency. Complete it and tell someone you trust where it’s kept. I’ll link to that form as well.

  (20:12) So, do you need a Will?

  I don’t know.

  But I hope this episode got you thinking about it and gave you the tools to know for yourself.

  If today’s episode made you realize your estate plan deserves some attention, check out my Estate Planning Support Services at deathreadiness.com/services.

  I’ll help you get organized, understand your documents, and walk into those attorney meetings feeling prepared.

  That’s deathreadiness.com/services. 

  The link is in the show notes. 

  Together, we’ll make sure you and your family are ready for whatever comes next.

  And if you have a question you’d like me to answer on Tuesday Triage, submit it at deathreadiness.com/tuesdaytriage. That’s deathreadiness.com/tuesdaytriage. The link is in the show notes.

  Thanks so much for listening.

  (21:10) 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.