Toward Economic Analysis of the Uniform Probate Code

44 Pages Posted: 28 Jun 2012 Last revised: 27 Aug 2012

Date Written: June 28, 2012


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.

Keywords: probate, succession, intestacy, wills, trusts, transaction costs, ex ante, ex post, rules, standards

JEL Classification: K11

Suggested Citation

Kelly, Daniel B., Toward Economic Analysis of the Uniform Probate Code (June 28, 2012). 45 University of Michigan Journal of Law Reform 855 (2012), Notre Dame Legal Studies Paper No. 2095537, Available at SSRN:

Daniel B. Kelly (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7690 (Phone)
574-631-8078 (Fax)

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