A Critical Research Agenda for Wills, Trusts and Estates

Abstract

ABSTRACT

Marginalized legal categories: Social inequality, family structure, and the laws of intestacy

“…Such research could also help to inform current efforts to reform the laws of intestacy. Legal scholars have offered critical evaluations of existing law (Crawford & Infanti, 2014) and have proposed revisions to the existing structure of intestacy (e.g., Gallanis, 2004; Gary, 2000; Spitko, 1999), advocated for a shift from a rule‐based system to one that incorporates a greater degree of judicial discretion (Gary, 2012), and suggested the potential for the development of personalized defaults using big data (Porat & Strahilevitz, 2014). Some reforms are in progress.…”

“…This article illustrates why intestacy represents a potential form of inequality in access to civil justice and exemplifies one way in which inequalities in Americans' access to ex ante legal assistance (Hadfield, 2010) can result in unequal outcomes under the law. To address this need, scholars have suggested ways to increase access to estate planning, including easing the formalities required to make a valid will (Boni‐Saenz, 2018; Crawford & Infanti, 2014), allowing the use of government‐generated testamentary schedules (Weisbord, 2012) or by loosening restrictions on the unauthorized practice of law to encourage the expansion of online providers of basic estate planning instruments (e.g., Barton, 2016). This article supports the need for such interventions.…”

“…This would occur if individuals with such family structures lacked wealth to pass on at death or if the wealth they owned was subject to a will or will substitute. 4 While a growing body of legal scholarship challenges the design of the laws of intestacy in light of changing patterns of family formation (e.g., Cahn, 2019;Crawford & Infanti, 2014;Gallanis, 2004;Gary, 2002Gary, , 2012Spitko, 1999;Waggoner, 2015;Wright & Sterner, 2017), detailed demographic analysis of their application is limited. Thus, several questions remain unanswered.…”

Estate planning among older Americans: The moderating role of race and ethnicity

“…In addition, analyzing sub‐groups within the racial/ethnic groups might reveal better understandings of different attitudes and behaviors concerning estate planning. There appears to be no substantial research addressing Asian‐American, Hispanic or Native American testation (Crawford & Infanti, ).…”

“…Historically, Blacks have had many reasons to distrust the legal system, especially during the Jim Crow Era, which means that they did not want to create a valid will (Deaton, ; Dyer & Bailey, ). Instead they relied on “heir's property” laws and as a result, a disproportionate number of Blacks had their property pass under the laws of intestacy, which made it more likely for their property to be owned under the co‐ownership forms that are subject to partition (Craig‐Taylor, ; Crawford & Infanti, ).…”