Professor Emerita Kris Knaplund, "Is a Will Better than Intestacy?" -- Cincinnati Law Review

Professor Emerita Kristine S. Knaplund's article, "Is a Will Better than Intestacy?" (SSRN) is published in the Cincinnati Law Review, 92 U. Cin. L. Rev. 631 (2024).  The article examines the reform movement to shift away from formalistic requirements for wills, and to instead embrace functionalism in order to encourage more wills.

Abstract of "Is a Will Better than Intestacy?"

Legal scholars have long advocated for a shift from formalistic requirements to functionalism in probate law to encourage more individuals to create wills. Relaxing various standards for testators, reform movement scholars argued, would lead to more wills, thus allowing for decedents to choose who received their property and what specific items they received. The intended result was less litigation over the representative’s actions, with a shorter probate process and fewer abandoned cases.

This article examines whether these anticipated results have been achieved. It begins by tracing the evolution of probate law reform, particularly focusing on the attestation requirement, and the move towards relaxed formalities exemplified by the Uniform Probate Code (UPC). Conducting a comparative analysis of several empirical studies, particularly David Horton’s study of the 2007 probate files from Alameda County, California, this article contrasts contemporary data with probate files from an era when formalism reigned, 1870 St. Louis, Missouri, to ask and answer five critical questions: Are deathbeds wills rare? Are there more wills probated today because of functionalism? Is there less litigation in the probate courts today? Are there fewer abandoned cases there today? And finally, are wills better than intestacy because the probate period is shorter than that of intestate estates?

Through empirical research and statistical analysis, this article seeks to provide insight into whether the anticipated benefits of probate reform have materialized. The answers may be surprising to readers. Furthermore, it sheds light on the broader implications of transitioning from formalistic to functionalist approaches in probate law and the impact on testamentary freedom and the administration of estates.