… Scholars argued that the relaxation of such standards would lead to more wills, thus allowing decedents to choose who received their property and what specific items they received. The result, they maintained, would be less litigation over the representative’s actions because the testator had designated an executor, and a shorter, faster probate process with fewer abandoned cases.
This Article examines whether these anticipated results have been achieved. It compares several empirical studies, focusing particularly on David Horton’s study of the 2007 probate files from Alameda County, California, and compares them to the probate files from more than one hundred years earlier in 1870 St. Louis, Missouri, when formalism reigned. This Article asks and answers five critical questions: Are deathbeds wills rare? Are there more wills probated today because of functionalism? Is there less litigation in the probate courts today? Are there fewer abandoned cases there today? And finally, are wills better than intestacy because the probate period is shorter than that of intestate estates?
Kristine S Knaplund, Is a Will Better than Intestacy?, 92 University of Cincinnati Law Review 631 (2024).
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