Abstract
This Article argues that nonprobate instruments (trusts, life insurance, retirement plans, and joint accounts) now comprise a shadow probate system that per-forms the core functions of probate but evades judicial oversight and public scrutiny. Like probate, shadow probate facilitates succession, though in a manner that caters to the privacy, business continuity, and asset sheltering goals of wealthy clients. By contrast, most households use wills for estate planning—or they avoid planning altogether and lapse into intestacy.
Wills and intestacy must wind through probate courts, which are vested with state authority and therefore follow due process. Shadow probate, on the other hand, is less constrained, allowing its users to subvert the principles of transparency and creditor protections embedded in probate. This schism between probate and shadow probate both reflects and exacerbates wealth inequality.
Scholarly treatment of will substitutes dates back at least forty years, to John Langbein’s seminal article on the nonprobate revolution. Since that time, succession planning has seen a proliferation of will substitutes. Subsequent scholarship has either tracked the piecemeal validation of nonprobate instruments or proposed modest reforms to probate. This Article takes a more holistic approach. It confronts the glaring question that arises as shadow probate threatens to eclipse probate itself: Is probate even necessary today? This Article answers emphatically in the affirmative. Probate is needed more than ever to preserve democracy and combat inequality.
Recommended Citation
Felix Chang,
Shadow Probate,
26
Nev. L.J.
419
(2026).
Available at:
https://scholars.law.unlv.edu/nlj/vol26/iss2/4