Libertarian Answer Man: The Efficacy of Wills

Q:

dHi Mr. Kinsella,

I have a question about property rights concerning dead people. How would a Rothbardian theory of property justify the will of a dead person? Is the will a genuine contract or is it void?

More specifically, I’m engaging in a conversation and someone said that a will is not per se a genuine contract because dead people don’t own things. And if dead people don’t own things, then how can it be said that there’s a transfer of property titles from the deceased person? Should the deceased person have to put in the will that they transfer the property titles to the heirs some moments before their official death?

I’m stumped on this one.

(My answer below is modified from that originally provided in response to this question.)

I have not written much publicly about this but have thought about it and discussed with people, e.g. David Gordon. For example, Gordon argued with me in private that wills are a problem because once you die you can’t then transfer ownership to your heirs since you don’t exist anymore.

To me this is a trivial problem that clever lawyering can fix. Libertarians don’t get this perhaps because they don’t understand law very well (and most lawyers don’t understand libertarianism very well, and don’t care, so don’t run around trying to find “justifications” for legal rules that already exist and that work perfectly well in practice.) ¹

So, you can use property ownership rights and contract to do what wills purport to do. If I was a minute from death I could give you all of my property by contract. I can also give you my property in the future, with various conditions. For example I could say “I hereby give heir H all that I own in 17 years.” Likewise, I could say “I hereby give H all the property that I own one second before my death, at that moment in time.” Or I could say “at the moment of my death t.” Now, as noted above, some nitpick over this since at time t there is no longer an owner alive to transfer the property. So you could simply instead say “at moment t-” where t– is the infinitesimal time right before one’s death (as in the nomenclature 0+ and 0- used in the limit in calculus), if someone is concerned about the time t since at time t I am no longer alive and thus own nothing and can’t give it away. (Some might be confused by this idea, but anyone who has used infinitesimals in a STEM field would get my point.)

If some nitpicky courts were to find a problem with this quite common sense scheme, then you could have private corporations emerge to help you do this. For example suppose I want you to be my heir. Instead of doing a contract/will, I could do it in other ways, such as:

• A contractual transfer: “I hereby grant you all that I own now, and anything I acquire in the future, and you in exchange grant back to me a life estate or (life) usufruct to use this stuff until I die.” For example I have a house. I have 20 or so years to live. I grant ownership of the house to my son, and he grants to me a life estate, that is, the right to use the house until I die. So until I die he owns the so-called naked ownership (La. Civ. Code art. 567) of the house but it’s burdened by my life estate. When I die, that disappears, so he now owns it outright. [See related example below]
• Some corporation emerges to do this for me, such as the Postmortem Distribution Company, but with contractual terms that specify that (a) upon my death, PDM transfers it to H; (b) before my death, I can undo or modify the contract and transfer, if I want; and (c) during my life, I can use the property as I see fit (without selling or destroying or signficantly modifying it, for example).
• I grant my property NOW, to PDM, in exchange for (a) PDM agreeing to give me a life estate (this would include a usufruct on the money etc. which gives me the right to spend it if I want) and (b) PDM makes a contract with my heirs H agreeing to transfer ownership of the resource to them upon my death.
• A PDM could be used in many other creative ways as well, such as to estalish “trusts,” such as an eccentric widow or spinster leaving her millions to her cat.”
  • I discuss this briefly in Libertarian Answer Man: Legal Entities and Corporations in a Free Society. See below.

So it’s easy to set up what wills do now. I just think we can just use wills, regard them as a contract to have a title transfer triggered at time t-, instead of having to use more complicated means to achieve the same thing.

So in response to: “And if dead people don’t own things, then how can it be said that there’s a transfer of property titles from the deceased person?” As noted above: the transfer happens the instant before death, not after death.

And re: “Should the deceased person have to put in the will that they transfer the property titles to the heirs some moments before their official death?” Well, possibly. They can do this if they want to be explicit. But I don’t think they have to put this in there; that’s just the more reasonable way to construe the will.

Incidentally, people could use similar legal techniques in a free society to create the equivalent of “corporations” of perpetual duration, homeowners associations (HOAs), trusts, and so on.

On trusts: from Libertarian Answer Man: Legal Entities and Corporations in a Free Society:

I think various legal forms of business organization can be done solely by contract, including homeowners’ associations, restrictive covenants that  run with the land, trusts, partnerships, and just “companies” in general.

I think without state special statutes for example, clever lawyers and business people could do a trust or something like it. For example suppose I want to leave a trust to take care of my cat after I die. Now the cat can’t own anything so this is tricky. So what you could do is hire a company who does this, which has a reputation for safeguarding client money and doing what they instructed, even after death. So I give Trust Supervisory Co. A $100k with instructions to use it for my cat. What if, after I die, they choose to just spend the money, after all they own it, right? Well their reputation would suffer, number 1. And no. 2, if this became a real risk, then you divide control of the money, by hiring Co. B to make sure Co. A follows the trust instructions. You could basically donate the $100k to A and B as co-owners, where A has the basic ownership and right to spend it for the cat, but B has the right to seize the money and hire a new trust company if they can go to court and prove that A is misusing the funds. There are lots of creative ways to do this.

Update: Another answer I recently gave on Twitter:

See https://t.co/uXhnHzxB89 Let me give you a simple example. If your retarded OCD autistic libertarian courts refuse to enforce wills on the grounds that the decedent is already dead by the time of the transfer, we clever lawyers can easily do a work around. For example, suppose…

— Stephan Kinsella (@NSKinsella) May 30, 2025

Twitter example:

Let me give you a simple example. If your retarded OCD autistic libertarian courts refuse to enforce wills on the grounds that the decedent is already dead by the time of the transfer, we clever lawyers can easily do a work around. For example, suppose I want to leave my house to my son John upon my death.
So what I do is give him the house but retain a life estate (life usufruct). He is the remainderman or naked owner.

This means that while I live I have the right to use it (usus (use) and fructus (profit from–e.g. make interest, which is a type of “civil fruit,” unlike natural fruits like your tree bearing fruit or your cow having a calf (La. Civ. Code art. 551 et pass.)–but not abusus (right to sell or destroy; Art. 567).) He has the “naked ownership” or remainder interest.

When I die, that interest evaporates and now his naked ownership/remainderman status matures automatically into full allodial ² ownership since there is no longer a life estate/usufruct on it.

There are many other clever things that we lawyers can do to overcome pettifogging niggling bullshit like autistic libertarian grad students can dream up in their dorm rooms while eating pizza and watching Conan O’Brien.

1. On the phenomenon of libertarians being good on libertarian principles and basic economics but usually weak on areas of specialization held by normies, and vice-versa, see Penner on Intellectual Property, Monopolies, and Property. [↩]
2. Not actually “allodial” like crankish “common law court” nuts use the term, but I use the term here just to tweak them and make them temporarily excited, like an Ayn Rand fan gets a secret thrill when they see her name in the index of a normal book; it makes them feel validated.  [↩]