Wills for Everyone: Helping Individuals Opt Out of Intestacy

Most Americans die without executing a will, thereby allowing testamentary freedom to lapse and property owned at death to pass by default rules of intestacy rather than the decedent’s expressed intent. This is problematic because most individuals without a will neither intend to die intestate and nor understand the significant undesirable consequences of intestacy. Prior intestacy scholarship evaluated the fairness, efficiency and social consequences of the current rules of heirship, but implicitly accepted the high rate of intestacy as a fait accompli. This Article rejects the assumption that the high rate of intestacy is insusceptible to legal reform. Scholars have traditionally explained the high long-term rate of intestacy as the product of psychological fears regarding mortality and the unwillingness to contemplate matters relating to death. But this explanation seems implausible. Even though humans commonly harbor fears about death, they are psychologically capable of contemplating the succession of property as demonstrated by the widespread use of non-testamentary transfers such as life insurance and jointly titled property with survivorship rights. This Article proposes an alternative explanation for testamentary procrastination, ascribing blame on the relative inaccessibility of the will-making process because of its obscurity, complexity, and cost. To simplify and promote lay access to the will-making process, this Article proposes a theory of lay testation and advocates for renewed consideration of statutory form wills with several important innovations. The most notable proposal is the creation of a “testamentary schedule,” an optional form will attached to the state individual income tax return that could be prepared and filed electronically. By integrating the income tax and estate planning processes, the testamentary schedule would discourage testamentary procrastination by interacting with the testator annually at the optimal moment, when she is required to prepare legally significant tax documents that in many cases take into account considerations relevant to estate planning (e.g., potential beneficiaries and the nature and extent of property). The Appendix includes a sample testamentary schedule and revocation form.