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25 DePaul L. Rev. 363 (1975-1976)
The Interplay of Probate Assets and Nonprobate Assets in the Administration of a Decedent's Estate

handle is hein.journals/deplr25 and id is 381 raw text is: THE INTERPLAY OF PROBATE ASSETS AND NONPROBATE ASSETS IN THE ADMINISTRATION OF A DECEDENT'S ESTATE James J. Carroll* With increasing frequency, nontestamentary devices are be- ing employed as substitutes for a will in contemporary estate plans. The author explores the interplay of probate and non- probate assets in two important areas: the surviving spouse's interest, and the apportionment of the federal estate tax. He suggests various approaches that the legislature and courts might adopt in formulating a definitive solution to these current probate problems. The past century has witnessed significant changes in not only the character of the property comprising a decedent's estate, but also the mode by which property is transferred from one genera- tion to the next. In the agrarian society of the nineteenth century, the primary emphasis of probate law was on the devolution of real estate, then the foundation of the American economy and the principal source of wealth. As society developed to the present highly industrialized and urbanized corporate structure, real es- tate was displaced from its exalted position in the economic structure and was replaced by intangible personal property, the life blood of modern capitalism. Accordingly, the transmission of intangible personal property has become the focal point of most contemporary estate plans. This shift in emphasis from real property to intangible personal property has been accompanied by a related phenomenon in the design of estate plans: a marked decline in the reliance on a will as the primary vehicle to dispose of one's estate.' With increasing frequency, a variety of nontestamentary devices have been em- * Associate, Sidley & Austin. Member of the Illinois Bar. 1. The decline in the use of a will as the primary estate planning tool is due in large part to the public's attitude toward probate proceedings. Rightly, or wrongly, the public seems to believe that such mandatory court proceedings generate unnecessary expense and delay in the transmission of the average estate at death. As a result, myriad techniques have developed to avoid probate. Zartman, Uniform Probate Code-Policies and Prospects, 61 ILL. B.J. 428, 429 (1973).

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