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Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020).

Each moment of every day, many people are living without a formal estate plan and dying without a valid will. Reasons include ignorance, inertia, and choice. Some might not know that they have the ability to transfer property at death; others don’t want to think about the matter or do not care. A slight few might consciously figure that solving who gets what is best left to survivors to sort out, thereby externalizing the effects of their indecision. And there always remains the unlikely possibility that a person will both know, and consciously select, the succession outcomes that intestacy would force. In the latter two instances, those who “choose not to decide [] still have made a choice.” Nevertheless, as Professors Mary Louise Fellows and E. Gary Spitko intimate in How Should Non-Probate Transfers Matter in Intestacy?, individuals who intentionally die without an estate plan are probably rare.

Dying without an enforceable estate plan poses problems because clarity of ownership – knowing who owns what and precisely when – matters. Such deaths are neither new nor novel, with intestacy rules offering a solution. The property will pass to the decedent’s heirs, i.e. those whom state statutes identify as takers in default of a will. Otherwise stated: the property will pass to whomever some set of long-ago legislators (picture that demographic) determined as the most likely (or, as shaded by inherent biases, “appropriate”?) candidates for the decedent’s largesse. While intestacy may provide an efficient solution for distributing the property of decedents who died without manifesting a preference, Professors Fellows and Spitko note the inadequacy of that solution and posit a more intent-effectuating response.

Most notable to critics of current intestacy statutes are the mismatches between the universality of death and the personality of a particular decedent—between objective rule and subjective reality, which describes every decedent’s “intent” even if we can no longer clearly discern it. As Professors Fellows and Spitko note, that asymmetry generates attempts to fit informal or under-recognized relationships into recognized statutory boxes or to determine what sorts of factors can remove a privileged “heir” status once obtained. That problem is exacerbated by time. Just as wills become more ambiguous the more stale they become, intestacy statutes often reflect suppositions about “rightful takers” that don’t square well with modern family dynamics. What would (“should?”) most decedents have wanted, most of the time? The most efficient answer is not necessarily the best. And as both over-and under-inclusive, the statutes often fail to get it right.

At some level, the problems that intestacy statutes solve by default seems dismissible because wills are cheap and easy to create. Would-be intestates accept, or again perhaps even choose, the consequences of their (in)action, with the law getting as close as possible to likely intent anyway and without costly, fact-intensive litigation to unearth it. Professors Fellows and Spitko would disagree in favor of a more direct engagement with the decedent’s intent. To them, while perhaps administratively costlier than applying objective rules of heirship, an intestate decedent’s probable intent can be discerned from an individualized review of the decedent’s own nonprobate transfers. Fellows and Spitko would surely impose new costs on the process of estate administration, but their elegant solution would be superior to intestacy in most cases. Lifetime donors – even those of will substitutes where the burn of transfer is delayed – are presumably more immediately, acutely aware that some sort of ownership transfer has taken place. Those choices offer valuable evidence of decedent intent, perhaps even more so than wills drafted long ago, and probably much more so than the text of a fusty statute.

These are a few of the direct arguments and outcomes to admire in the authors’ work. But part of what makes the piece so powerful has as much to do with other things. First, their piece is thorough and careful, and for those less familiar with empirical research, offers a blueprint for how one might effectively blend qualitative and quantitative research with existing legislation and legal theory. Second, it holds a dialogic quality that deepens understanding. The authors invite the reader into a conversation with and between them and the material, their thesis, the estate planners they interviewed and the individuals they polled, the ways in which their initial theses were refined and re-presented. At least for me, they encouraged me to have a conversation with myself. I had first encountered their initial research a decade ago, and found the ideas then presented compelling. The ability to revisit that material anew and updated ten years later, and to see how different stages of the past research and results both altered initial project scope and contributed to present design, generated a satisfying feeling: that even were I not to have agreed with the outcomes reached, I had in a sense lived with, really knew, and understood that which informed them.

Although the authors’ scholarship is always valuable, the range of benefits found in this update was an unexpected gift.

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Cite as: Katheleen Guzman, Most People, Most of the Time, JOTWELL (January 31, 2022) (reviewing Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020)),