Excerpted From: Isabella V. Avila Perez, Without a Will, There Is Still a Way: A Statutory Solution to Increase the Value of a Small Estate and Aid in Reducing the Racial Equity Gap in Wisconsin, 24 Marquette Benefits & Social Welfare Law Review 265 (Spring, 2023) (137 Footnotes) (Full Document)


IsabellaVAvilPerezNot all wealthy people have an estate plan ... maybe it is the word "estate" that makes estate planning sound as if someone must be wealthy to need it. Estate planning is not only for the wealthy. While the task to plan can be daunting, people often misunderstand that they do not need to own a lot to still plan for a lot. Just because an estate "isn't complicated" does not excuse anyone from planning ahead.

Testamentary freedom is the guiding principle behind succession law. Essentially, this freedom allows every individual to distribute their property after death to whomever they chose. It is not just for the wealthy, but it offers advantages to those who utilize it and becomes a detriment to those who are unaware of it.

For generations, communities of color have struggled to increase their wealth. While several factors have contributed to communities of color struggling to increase their wealth, a lack of access to estate planning tools has left minority groups compromised and more likely to die intestate. Rooted deep in American and English history, the concept of estate planning was created for individuals to maintain their wealth over time - to succeed in the next generation. Curiously, those who could benefit from it most are the least likely to implement it.

This Comment argues how adjusting and indexing Wisconsin's summary settlement and summary assignment small estate amounts will aid in increasing minority groups and people of color's generational wealth and attempt to narrow the generational racial equity gap. To address the issue and the solution presented by this Comment, a necessary background of the probate process, the problems with probate, alternatives for the probate process, Wisconsin Statute 867.01 Summary Settlement, Wisconsin Statute 867.02 Summary Assignment, and an overview of systemic racism and estate planning follows.

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Just because people feel like there isn't enough water at the bottom of their tub of wealth does not excuse them from creating an estate plan. In fact, maybe the lack of accumulation at the bottom is a better indicator signaling they need an estate plan to retain what they do have. Because attorneys do not have the capability of preparing an estate plan for everyone, a statutory solution is needed.

It is time to implement a more direct statutory solution by increasing the small estate's value amount and allowing for an index of the value to address the racial equity problem that troubles Wisconsin. Racial disparities can no longer be treated as merely political issues by debating policies and programs. Wisconsin's racial disparity issue is extreme and must be treated with direct statutory actions that create a default law to protect those individuals and families in vulnerable positions. Increasing the small estate's value would allow for more low-income families to take advantage of Wisconsin's 867 statute. If Wisconsin cannot fix its lack of estate planning for people of color, then it will have to settle to increase its summary settlement and summary assignment of small estate amounts to combat the racial equity gap.

Isabella V. Avila Perez is a graduate of Marquette University Law School (MULS), originally from Miami, Florida. During her time at MULS, she served as Vice President of the Hispanic Latino Law Student Association (HLLSA), co-founded the Tax Law Association, and served as a Staff Editor for the Marquette Benefits and Social Welfare Law Review.