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Testamentary Fragmentation and the Diminishing Role of the Will: An Argument for Revival

30 Pages Posted: 8 May 2008  

Kent D. Schenkel

New England Law | Boston

Abstract

Popularized by a desire to avoid the complexities and inefficiencies of probate, the now ubiquitous nonprobate system of transferring property at death brings a wealth of complexities and inefficiencies of its own. Our patchwork system of will substitutes, while undeniably simplifying post-death administration, requires more documentation, techniques, and tasks than ever before. On the positive side, our experiences with nonprobate transfer techniques revealed flaws in testamentary transfer laws that are now being addressed. But exposure of ancillary problems with wills laws is only a byproduct of the nonprobate revolution. If we are to reign in fragmentation and its consequent ponderousness and inefficiency we must admit that our aversion to probate, not wills, is driving the proliferation of wills substitutes. Ironically, the will, the instrument whose undesirable post-death characteristics spawned the turn towards alternative techniques, offers a simple and efficient mechanism for channeling a person's testamentary desires. The only significant impediment to reviving the will as the instrument of choice for this purpose is that wills carry the burden of probate. But because probate is now seen as largely unnecessary in many estates, legislation should focus on relieving wills from that burden.

Keywords: wills, probate, nonprobate, will substitutes, estates, trusts, estate planning, testamentary, executor, trustee, personal representative

Suggested Citation

Schenkel, Kent D., Testamentary Fragmentation and the Diminishing Role of the Will: An Argument for Revival. Creighton Law Review, Vol. 41, No. 155, 2008. Available at SSRN: https://ssrn.com/abstract=1130160

Kent Schenkel (Contact Author)

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States

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