Wills for Everyone: Helping Individuals Opt Out of Intestacy

Abstract

Testamentary freedom, the guiding principle of American in-heritance law, grants individuals broad power to control the disposition of property at death. Most individuals, however, allow testamentary freedom to lapse because they never execute a will. Empirical research reveals that most Americans need and want a will because they cannot identify their intestate heirs, but nevertheless die intestate. The high rate of unintended intestacy is a longstanding, pernicious problem that undermines testamentary freedom, disrupts the expectation of intended beneficiaries, and disproportionately affects nontraditional families and smaller estates. This Article challenges the traditional assumption that most individuals lack a will because they instinctively avoid or postpone decisions regarding death. The widespread use of nontestamentary transfers, such as pay-able-on-death accounts and life insurance, prove that Americans are willing to plan for the succession of property at death provided the process is sufficiently accessible, simple, and quick. By contrast, most lay individuals likely perceive the formality laden will-making process as obscure, complex, burdensome, and expensive. This Article proposes simplifying the testamentary process by attaching an optional form will to state individual income tax returns. This “testamentary schedule” would improve the will-making process by rendering it simple, widely accessible, easily amend-able, and less susceptible to tampering or misplacement.