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53 B.C. L. Rev. 877 (2012)
Wills for Everyone: Helping Individuals Opt out of Intestacy

handle is hein.journals/bclr53 and id is 885 raw text is: WILLS FOR EVERYONE: HELPING INDIVIDUALS OPT OUT OF INTESTACY REID KREss WEISBORD* Abstract: Testamentary freedom, the guiding principle of American in- heritance law, grants individuals broad power to control the disposition of property at death. Most individuals, however, allow testamentary freedom to lapse because they never execute a will. Empirical research reveals that most Americans need and want a will because they cannot identify their intestate heirs, but nevertheless die intestate. The high rate of unin- tended intestacy is a longstanding, pernicious problem that undermines testamentary freedom, disrupts the expectation of intended beneficiaries, and disproportionately affects nontraditional families and smaller estates. This Article challenges the traditional assumption that most individuals lack a will because they instinctively avoid or postpone decisions regard- ing death. The widespread use of nontestamentary transfers, such as pay- able-on-death accounts and life insurance, prove that Americans are will- ing to plan for the succession of property at death provided the process is sufficiently accessible, simple, and quick. By contrast, most lay individuals likely perceive the formality laden will-making process as obscure, com- plex, burdensome, and expensive. This Article proposes simplifying the testamentary process by attaching an optional form will to state individual income tax returns. This testamentary schedule would improve the will- making process by rendering it simple, widely accessible, easily amend- able, and less susceptible to tampering or misplacement. INTRODUCTION The guiding principle of inheritance law is one of testamentary freedom, holding that the owner of property during life has the power to control its disposition at death.1 The polestar of American inheri- tance law, testamentary freedom is a right protected by the U.S. Consti- * © 2012 Reid Kress Weisbord, Assistant Professor, Rutgers University School of Law- Newark. Special thanks to Carlos Ball, Gerry Beyer, Thomas Gallanis, Taja-Nia Henderson, Ray Madoff, Bruce Mann, Chrystin Ondersma, George Thomas, Stephen Urice, and Law- rence Waggoner for reading earlier drafts of this paper and to Ryan Ballard for excellent research assistance. The Article benefited greatly from suggestions and comments offered at faculty colloquia at Rutgers University School of Law-Newark and DePaul University College of Law. I See infta notes 24-33 and accompanying text. 877

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