ABSTRACT
In every state, a collection of statutes called the Probate Code is the main source of substantive inheritance law. However, Probate Codes also serve another purpose: if litigation arises in probate court, they operate as codes of civil procedure. And although probate procedures are arguably more important than ever – over the next two decades, they will provide the infrastructure for the largest intergenerational wealth transfer in history – they have been neglected by both proceduralists and wills and trusts scholars.
This Article explores this hybrid field. First, it reveals that probate procedures are highly distinctive. Since the passage of the Federal Rules of Civil Procedure in 1938, policymakers have tried to consolidate related disputes into a single proceeding, create litigation frameworks that balance accuracy and efficiency, and ensure that parties with property rights at stake in a proceeding receive notice and an opportunity to be heard. However, probate procedures often defy these norms. For one, Probate Codes fragment inheritance litigation through narrow jurisdictional rules and, in some states, retrials of completed proceedings. This forces parties to divide what should be a single dispute among multiple matters and occasionally leads to the forfeiture of substantive rights. In addition, probate’s merciless deadlines and fierce resistance to efforts to reopen or collaterally attack erroneous rulings sacrifice correct outcomes for speed and finality. Lastly, although inheritance provided the backdrop for two major US Supreme Court opinions about notice under the Due Process Clause of the Fourteenth Amendment, some Probate Codes deliberately try to keep cases off the radar of potential litigants.
Second, the Article evaluates why probate procedures are unique. It concludes that probate procedures embody a mix of coherent policy choices and anachronisms. On the one hand, there are compelling reasons to make probate proceedings fast and definitive. Assets must be transferred to the living to remain productive and are difficult to recover after distribution. But on the other hand, limits on probate court jurisdiction stem from little more than historical accidents and outdated assumptions about probate judges. Moreover, probate’s merciless timelines and force field around demonstrably wrong court orders can both thwart a decedent’s wishes and shield fraudsters.
Third, the Article suggests reforms that better reflect the realities of contemporary inheritance disputes. It argues that restructuring probate procedure around one-stop adjudication would spare parties from having to start over after years of litigation and eliminate outcome-determinative technicalities. It also contends that creating narrow exceptions to deadlines and permitting victims of probate-related fraud to sue anyone who has benefited from it would facilitate testamentary intent and deter wrongdoing, aligning the procedural and substantive halves of the Probate Code.
Horton, David, Probate Codes as Procedural Codes (January 9, 2026), 115 California Law Review (forthcoming 2027).
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