Probate-Error Costs

46 Pages Posted: 16 Mar 2016 Last revised: 16 May 2017

See all articles by Mark Glover

Mark Glover

University of South Carolina School of Law

Date Written: March 14, 2016


Because a will’s authenticity is never certain, probate courts sometimes make incorrect determinations regarding whether a purported will is a genuine expression of the decedent’s intent. When the court incorrectly admits an inauthentic will to probate, a false-positive outcome occurs. Conversely, when the court incorrectly denies probate of an authentic will, a false-negative outcome occurs. Because false-positive outcomes grant probate of inauthentic wills and false-negative outcomes deny probate of authentic wills, both can be characterized as “probate errors.”

Probate errors are inevitable, and consequently policymakers must decide how to balance the risk of false-positive outcomes and false-negative outcomes. The conventional method by which courts authenticate wills favors false-negative outcomes and minimizes the risk of false-positive outcomes. By contrast, a reform movement argues that the will-authentication process should be less concerned with avoiding false-positive outcomes and should instead focus more on overall accuracy. Yet, despite a compelling argument, the reform movement has not satisfactorily explained why the proper goal of will-authentication should be accuracy.

This Article uses decision theory to more fully explain both why the conventional law focuses on minimizing the risk of false-positive outcomes and why the modern law should be crafted to minimize total probate-error risk. Decision theory suggests that, to identify the proper goal of a decision-making process, one must compare the error costs of false-positive outcomes and false-negative outcomes. If error costs are symmetric, then the decision-making process should be designed to minimize the total risk of error. However, if error costs are asymmetric, then the decision-making process should be designed to minimize the more costly type of error.

This Article is the first to systematically analyze relative error costs within the context of will authentication. Specifically, it argues that probate-error costs were previously asymmetric, with false-positive outcomes being more costly than false-negative outcomes, and it therefore explains why the conventional law minimizes the risk of false-positive outcomes at the expense of an increased risk of false-negative outcomes. Furthermore, the Article argues that probate-error costs have changed so that they are now more symmetric. The recognition of this shift bolsters the reform movement’s argument that the goal of will authentication should be increased accuracy.

Keywords: Wills, Trusts & Estates; Probate; Estate Planning; Decision Theory

Suggested Citation

Glover, Mark, Probate-Error Costs (March 14, 2016). 49 Connecticut Law Review 613 (2016), Available at SSRN:

Mark Glover (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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