Abstract

Excerpted From: Shannon Chamberlain, To Will or Not to Will: East Asian Americans and Their Legal Challenges When Planning for Their Estates Within the United States Probate System, 30 Asian Pacific American Law Journal 123 (Spring 2026) (254 Footnotes) (Full Document)

Historically, Asian Americans have been less likely than white Americans to have wills. However, COVID-19 deaths and the surge in anti-Asian violence during the past five years have driven estate planning attorneys and nonprofit organizations to urge Asian Americans to create wills and other estate planning instruments. This Article begins with a discussion of the pertinent cultural needs seen in Chinese, Japanese, and South Korean families which present obstacles to estate planning when cultural competence is lacking. Part I continues with a discussion of the underrepresentation of East Asian Americans in the legal profession and estate planning in particular, which in turn may contribute to disincentivizing East Asian Americans to seek out an estate planning attorney. Part I concludes with documenting both recent and historical judicial estate contests to show the challenges faced by East Asian Americans in having their estate administered uninterrupted in probate over the objection of their family members, which relates to some of the cultural themes addressed in Part I. Part II then briefly surveys legal distinctions between creating estate planning instruments in the United States compared to China, Japan, and South Korea, which can create confusion for East Asian American families who may lack familiarity with such variances.

Part III and Part IV address solutions for East Asian American families to become better equipped with reliable estate planning tools and strategies. Part III begins with solutions for estate planning attorneys to increase engagement with East Asian American clients, including documenting examples of recent efforts to engage and educate East Asian American families on estate planning, while recognizing that the COVID-19 pandemic and related violence prompted these discussions. Part IV then concludes with an examination of possible solutions for preventing will contests for East Asian American families with the purpose of encouraging more dependable estate planning.

This Article recognizes that its analysis is limited to East Asian Americans mainly descending from China, Japan, and South Korea. This Article does not provide a representative overview that fully grasps the extent of estate planning distinctions and cultural variances across Asia. Rather, this Article provides a focused look at East Asian Americans, defined for purposes of this Article as including persons descending from China, Japan, and South Korea. If references are made to Asian Americans more generally, such a choice is based in reliance on research and statistics of other sources which define Asian Americans or East Asian Americans more broadly than this Article.

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The COVID-19 pandemic, and its effects on the East Asian American community, prompted discussion among practitioners about increasing efforts to meaningfully engage with East Asian American clients to enhance their estate planning experience. Consequently, legal and nonprofit organizations improved in their offerings on instructive materials and live lectures to benefit both East Asian American clients and estate planning professionals. These endeavors have been especially helpful, as this Article has shown that estate planning in East Asian countries often involves significant differences from the United States in the type of instruments that are accepted for testation and the instruments that can avoid probate.

Nonetheless, East Asian Americans continue to experience challenges in estate planning, mainly due to the limited availability of East Asian American attorneys that can assist East Asian American estate planning clients in a culturally competent manner, as well as the legal standards for due execution of wills that plague non-English-speaking East Asian Americans. When non-English speaking East Asian American testators or witnesses are not provided translations of wills or counterparts in both English and a native language, will contests can persist. This Article has provided possible solutions for East Asian American testators, with the use of estate planning tools that are currently available, such as family meetings and no-contest clauses, in addition to multilingual counterparts and translation services. These simple, but effective solutions would demonstrate dedication to strengthening the relationship between East Asian Americans and the estate planning community.

Shannon Chamberlain is an Assistant Professor of Legal Practice at Atlanta’s John Marshall Law School. She earned an LL.M. in Business Law from UCLA School of Law and a J.D. from Syracuse University College of Law and is admitted to practice in New York and Florida.