In Partial Defense of Probate: Evidence from Alameda County, California
Citation: 103 Geo L.J. 605 (2015)
For five decades, probate—the court-supervised administration of decedents’ estates—has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the United States, as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite this hunger to privatize the inheritance process, we know little about what happens in contemporary probate court. This Article improves our understanding of this issue by surveying every estate administration stemming from individuals who died in Alameda County, California in 2007. This original dataset of 668 cases challenges some of the most entrenched beliefs about probate. For one, although succession is widely seen as a tranquil process in which beneficiaries settle disputes amicably and pay a decedent’s debts voluntarily, both litigation and creditors’ claims are common. In addition, attorneys’ and personal representatives’ fees are far lower than assumed. The Article then uses these insights to critique the demand for probate avoidance, to contend that probate’s cautious approach to creditors should also govern nonprobate transfers, and to suggest reforms to the probate process.