Toward Economic Analysis of the Uniform Probate Code
Daniel B. Kelly
Notre Dame Law School
June 28, 2012
45 University of Michigan Journal of Law Reform 855 (2012)
Notre Dame Legal Studies Paper No. 2095537
Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead hand” control; analyzing UPC provisions pertaining to the harmless error rule, reformation, and ademption by extinction; and evaluating law reforms such as proposals to abolish attestation or prevent the disinheritance of children.
Number of Pages in PDF File: 44
Keywords: probate, succession, intestacy, wills, trusts, transaction costs, ex ante, ex post, rules, standards
JEL Classification: K11Accepted Paper Series
Date posted: June 28, 2012 ; Last revised: August 27, 2012
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