Surprised by the Inevitable: A National Survey of Estate Planning Utilization
Vol. 53
June 2020
Page 2511
The laws governing the transfer of property at death — the laws of succession — give individuals broad freedom to control the administration and distribution of their property. To exercise this freedom, however, individuals must take affirmative steps during life, by executing a will, a revocable trust, or other ownership or transfer arrangements. Doing so can provide economic, social, and emotional benefits to both the decedent and his or her survivors, and represents a form of self-determination. Yet many individuals fail to undertake any estate planning, leaving it to the state to determine how their property is distributed without regard for their individual preferences. This failure to engage in estate planning not only has consequences for individual decedents and those who are close to them, but also for the design of law and policy. Several doctrines within the laws of succession rely on empirical assumptions about estate planning behavior, including both the overall incidence of estate planning and its distribution throughout the population. Similarly, policy proposals aimed at minimizing disparities resulting from unequal estate planning utilization also require an understanding of patterns of estate planning behavior. Variation in estate planning utilization also raises concerns regarding access to civil justice, and challenges our empirical and theoretical understanding of this concept.
Not surprisingly, scholars have long recognized the utility of empirical investigations of estate planning behavior. Yet despite this, we lack contemporary evidence of the incidence of various forms of estate planning or variation in their usage by demographic and socioeconomic characteristics. While several existing studies have investigated these questions, their findings are generally restricted to single jurisdictions and are further circumscribed by data and methodological limitations. This study offers a first step toward addressing this gap in the literature, drawing on unique data from a national survey (N=1,975) of estate planning utilization. The data confirm that while some adults in the United States do avail themselves of various forms of estate planning, nearly half (44%) report having no form of estate planning at all. Using multiple regression analysis, the Article moves beyond the bivariate descriptive results of earlier studies to investigate the interrelationship between estate-planning uptake and several demographic and socioeconomic characteristics. Finally, the Article considers the overlapping usage of multiple forms of estate planning and the means by which estate planning instruments are prepared to offer more nuanced perspectives on the use of estate planning. The Article offers foundational empirical evidence with significant implications for law and policy and identifies several topics that merit additional empirical investigation.