James R. Hines, Jr. (Michigan) presents Rational Intestacy and Probate Reform at Chicago today as part of its Law & Economics Workshop Series:

Many people die intestate (without wills), leaving property to be allocated by law among
potential heirs. Probate reforms that more closely align intestacy allocations with
preferences are designed to make property pass at death in a manner that better
approximates what decedents intended. This goal is frustrated by the voluntary nature of
intestacy. If individuals are rational, probate reforms that better match intestacy
allocations to decedent intent encourage greater numbers of individuals to do without
wills. This economizes on costs, and improves efficiency, but generally reduces the
extent to which property dispositions correspond to intentions. With rare exceptions, it is
impossible for the following three conditions simultaneously to hold: that individuals act
rationally, an intestacy regime is efficient, and an intestacy regime supports the closest
possible match between property dispositions and decedent intent. Indeed, there exists
an important range of conditions under which the most efficient intestacy regime supports
the worst possible match between property dispositions and decedent intentions.
Consequently, if individuals behave rationally then it will generally be necessary to
choose between reforms that promote efficiency and those that make property pass in a
manner that corresponds to decedent intent. The goal of supporting efficient outcomes by
adhering to decedent intent requires that individuals have rational preferences that they
express in wills, but also requires that they make irrational or uninformed decisions about
whether or not to have wills.