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Estate Planning -- Done Right

Richard A. Epstein

Rather than address John Roemer's essay at an abstract level, I will return to my original academic roots as an estate planner. In order to equalize prospects of success within the family, Roemer suggests a complex scheme of testamentary disposition that, to my knowledge, no prudent individual has ever followed. If such a scheme is unworkable within a single family, it is even less plausible as a basis for public policy.

During life, it may be wise and possible to make subtle adjustments in annual giving to reflect the differences in the needs and prospects of children. Sometimes larger sums are invested in children who have planned risky careers. But not very often. Frequently, children with more conventional aspirations need and receive money for a down-payment on a house, or to pay private school tuition for grandchildren. Throughout it all much may depend on such fortuitous circumstances as where they live and how well they get along with their parents.

Even during life, however, the baseline presumption of equality across children is very strong, and deviations from that standard are undertaken only with caution, and, often, only after sounding out those children who are asked to accept a diminished share of parental largesse. But after death the situation is quite different, and the flexibility found in gifts is typically absent from bequests. A testamentary disposition is often made once and for all. So what should be done if an aspiring musician scraps her plans and opts for a high-paying job in investment banking? Take back the money? The future variations are so great that a reversion to the equal division norm becomes even stronger, particularly for dispositions to young children whose prospects are still fluid. Even in family situations, Roemer's finely calibrated sophistication is not to be expected. Flexibility requires setting up a costly discretionary trust, with a trustee who, even with the best of intentions, may not be able execute the commands. The default option of equal treatment among offspring is not only safe; it is also cheap.

The lessons from estate planning for political theory are, I fear, precisely opposite to those Roemer draws. Estate planning shows how difficult it is to work sensible schemes of equalization and redistribution even within families, where close affective ties across and within generations serve to reduce the abuses of discretion. Estate planning practices also show little voluntary redistribution outside the family. In the political setting, we collectively do not have strong affective ties; we do not have good information about the prospects of different individuals; and we cannot monitor recipients to distinguish bad behavior from bad luck. And we do not give of ourselves, but must take from some in order to give to others. Of course we need social institutions to handle cases of misfortune (even when attributable to bad behavior, I might add). But Roemer's statistical central planning would deplete the treasury in the fruitless effort to place all individuals in arbitrary risk classes. The more sensible response is to rely on churches, fraternal organizations, and, yes, the family, to respond to the questions of ill fortune, based on better information and better social controls. On these, however, Roemer is silent. Instead his actuarial balancing act would lead to levels of political intrigue likely to bankrupt us all. And no sound estate planner could tolerate that.

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Originally published in the April/May 1995 issue of Boston Review



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