Thomas Jefferson on Wills

Consider the following quotation from page 1 of the Dukeminier, Johanson case law book entitled Wills, Trusts and Estates, Sixth Edition, Aspen Publishers, Inc. 2000:

“THOMAS JEFFERSON, 7 JEFFERSON’S WORKS 454 (Monticello ed. 1904): “The Earth belongs in usufrucht[*] to the living; the dead may have neither powers nor rights over it. The portion occupied by any individual ceases to be his when he himself ceases to be, and reverts to society.” (Letter to James Madison dated Sept. 6, 1789)”

* –noun Roman and Civil Law.

Jefferson seems to be saying at least a couple of things here. First, our society places importance on the most efficient use of property. With death, our resources are not to be abandoned. On the contrary, we need to avail society, avail the living of these resources. Another point to be taken from this passage is that without an indication of the desire or “will” of the deceased, with nothing more than merely the death of the deceased, the portion occupied by the deceased “reverts to society”.  This is another good argument for carefully structuring a will .  

To be sure, without knowing more about the deceased and his obligations while alive, it wouldn’t properly or fairly serve society to just return (escheat) property to the state in intestacy (death without the presence of a will).  The laws generally governing intestacy provide in fact that without the creation of a will or a trust, your property will all likely pass to your surviving spouse and to your children. This is because society wants us to take care of our own, rather than creating potential wards of the state.