How Should Non-Probate Transfers Matter in Intestacy?

53 U.C. Davis Law Review __ (2020 Forthcoming)

48 Pages Posted: 24 Mar 2020

See all articles by Mary Louise Fellows

Mary Louise Fellows

affiliation not provided to SSRN

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 2020

Abstract

As American family structures have become more heterogeneous, status-based intestacy statutes have become less suited to promoting donative intent. Indeed, numerous scholars of wealth transfer law have noted the critical need for intestacy law reform to address the needs of decedents whose donative intent does not comport with traditional family norms. We propose addressing this concern by looking to intestate decedents’ non-probate transfers, such as a revocable trust, life insurance policy, 401(k) account, brokerage account, or joint tenancy with right of survivorship deed. In 2010, we, along with a co-author, published the first study to consider the relationship between donative intent with respect to the probate estate and donative intent as expressed in non-probate transfers. That study utilized a factorial research design to assess public attitudes and offered support for our new heir hypothesis, that, depending on the identity of the non-probate transfer beneficiary and the identity of the existing heir, a decedent would want a non-probate transfer beneficiary who is not otherwise an heir to be treated as an heir. The instant two-part study of estate planners produces additional knowledge about how best to integrate non-probate transfers into intestacy statutes. In the first part of our study, we conducted a paper survey of forty-five estate planners. The responses to this survey greatly influenced the second part of our study in which we conducted in-person or telephone interviews with nineteen estate planners. The findings reported in this study provide the framework for statutory reform. This study demonstrates that the new heir reform increases the likelihood of promoting intestates’ donative intent in a growing number of twenty-first century familial situations.

Keywords: intestacy, non-probate transfers, estate planner survey, estate planner interviews, estate administration, escheat, distant relations

Suggested Citation

Fellows, Mary Louise and Spitko, E. Gary, How Should Non-Probate Transfers Matter in Intestacy? (2020). 53 U.C. Davis Law Review __ (2020 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3545451

Mary Louise Fellows

affiliation not provided to SSRN

E. Gary Spitko (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-1771 (Phone)

HOME PAGE: http://www.scu.edu/law/FacWebPage/Spitko/

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