inheritance

/in her"i teuhns/, n.

1. something that is or may be inherited; property passing at the owner's death to the heir or those entitled to succeed; legacy.

2. the genetic characters transmitted from parent to offspring, taken collectively.

3. something, as a quality, characteristic, or other immaterial possession, received from progenitors or predecessors as if by succession: an inheritance of family pride.

4. the act or fact of inheriting by succession, as if by succession, or genetically: to receive property by inheritance.

5. portion; birthright; heritage: Absolute rule was considered the inheritance of kings.

6. Obs. right of possession; ownership.

[1375-1425; ME enheritance < AF. See INHERIT, -ANCE]

Syn. 1. patrimony; bequest. INHERITANCE, HERITAGE denote something inherited. INHERITANCE is the common term for property or any possession that comes to an heir: He received the farm as an inheritance from his parents. HERITAGE indicates something that is bequeathed to a subsequent generation by an individual or by society: our cultural heritage from Greece and Rome.

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Devolution of property on an heir or heirs upon the death of its owner.

In civil law jurisdictions it is called succession. The concept depends on a common acceptance of the notion of private ownership of goods and property. Under some systems, land is considered communal property and rights to it are redistributed, rather than bequeathed, on the death of a community member. In many countries, a minimum portion of the decedent's estate must be assigned to the surviving spouse and often to the progeny as well. Intestacy laws, which govern the inheritance of estates whose distribution is not directed by a will, universally view kinship between the decedent and the beneficiary as a primary consideration. Inheritance usually entails payment of an inheritance tax. See also inheritance tax; intestate succession; probate.

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▪ law

Introduction

also called  succession  

 the devolution of property on an heir or heirs upon the death of the owner. The term inheritance also designates the property itself. In modern society the process is regulated in minute detail by law. In the civil law of the continental European pattern, the pertinent branch is generally called the law of succession. In Anglo-American common law it was customary to distinguish between descent of real estate and distribution of personal estate. The rules applicable to the two kinds of property have been fused, but no common, overall name is yet universally accepted. In England books dealing with the subject are varyingly entitled On Wills, On Probate, On Succession, or On Executors and Administrators. In the United States the term probate law is frequently, although inaccurately, applied to the field as a whole. Following the title of an important statute of the state of New York, another term, law of decedents' estates, has been gaining ground, as has the law of succession.

Inheritance and property rights (property law)

Inheritance and individual ownership of property

      Inheritance of property cannot occur unless goods are regarded as belonging to individuals rather than to groups and unless the goods are of such permanence that they continue to exist and to be useful beyond the death of the owner. Among primitive (primitive culture) food-gatherers and hunters, it has not been uncommon for such personal belongings as weapons or bowls to be destroyed after the death of the owner in order to protect the survivors from being molested by his spirit. Among the Papua of New Guinea and the Damara (Bergdama) of Namibia, the hut of the dead man was abandoned or burned down so as to ban the magic of the disease of which the owner had died. Among the Herero of southwest Africa, the dead (death rite) man's goats were slaughtered and eaten; this custom (death rite) seems to have been connected with the fear that they were affected by his magic and also with the belief that the spirits of the slaughtered goats would follow the dead owner into the realm of spirits, where he would need them. Belief in providing for the needs of the dead seems to have been the root of the widespread custom of burying (burial) with the body or burning victuals, utensils, treasure, slaves, or wives. Tombs have yielded a wealth of evidence of such practices in the cultures of the Stone and Bronze ages as well as in the high civilizations of ancient Egypt and pre-Columbian Mexico. Another way of disposing of a dead man's effects was to distribute them among remote relatives and friends, as in the case of such American Indian tribes as the Delaware and the Iroquois; distribution of this sort, in the absence of rules of inheritance, could easily lead to quarrels and violence, as frequently happened among the Comanche Indians.

      The view of some Marxist (Marxism) writers that common ownership of all goods, or at least of land, was once universal among mankind can be neither proved nor disproved. Group ownership has been widespread but by no means universal among primitive and archaic agriculturalists. It has, indeed, persisted into modern times in India and parts of Africa and Asia, and it played a considerable role in the development of the Teutonic and Slavic peoples of Europe. In Serbia ownership of the land by zadrugas—that is to say, large groups of progeny of a common ancestor—continued into the 20th century. In western Europe the common ownership of pastures and woods, which grew out of the former system of common ownership of the land of a village, can still be found, especially in the Alpine regions of Switzerland and Austria. While in earlier times colonization of new land tended to be carried on by groups—for instance, the German settlement of the regions east of the Elbe in the 10th to 13th centuries—the Europeans who settled in North America, Australia, South Africa, and other parts of the world during the 18th and 19th centuries regarded individual ownership of land as most favourable to efficient use. In the 20th century, socialist ideas, combined with large-scale mechanization, resulted in new forms of land ownership in common: the kolkhozy of the former Soviet Union, the communes of the People's Republic of China, and the kibbutzim of Israel. Wherever land is held in common, the death of a member of the group results not in inheritance but rather in a rearrangement of duties and of rights of participation in the produce of the land or rights of temporary usage of the land itself.

Critiques of inheritance

      The institution of inheritance has been criticized because it renders possible the acquisition of wealth (wealth and income, distribution of) without work and because it is regarded as a principal source of economic (economic systems) inequality. Such attacks have come not only from radicals to whom complete equality of income appeals as a social ideal but also from more moderate thinkers to whom great differences in the distribution of wealth appear to be incompatible with modern views of the dignity of man. In response to their criticisms, inheritance has been defended on economic as well as on moral grounds.

      Inheritance has been said to be necessary within the framework of an economy of individual property to guarantee the continuity of enterprise, without which long-range economic activity could not flourish. This argument has lost much of its force as large-scale enterprise has come to be carried on in corporate form and thus to be directed not by owners but by specialists in management who succeed each other in the manner of officeholders. There is, however, still force in the argument that, without the incentive of handing on the fruits of one's work, competition and consequently the functioning of the total economy would be hampered.

      It is possible to conceive of a social (social structure) system in which property rights would end with the owner's death. If the assets left behind were not reassigned to some other individual, the eventual result would be complete ownership of all wealth by the community, and the system of individual property would end. A new individual owner could be determined in one of four ways: ownership by the first taker, a practice that would produce strife and disorder; reassignment by a governmental agency, which would constitute an exercise of power regarded as dangerous in a free society; reallotment in accordance with settled rules generally fixed for all; or reallotment in accordance with the wishes of the decedent. The last two are the ways in which the modern systems of inheritance work: the estate is reallotted according to the rules of intestacy law or according to the will of the decedent.

      The only debatable issues within a system of private ownership are: who are to be the takers in intestate succession (heir); and whether or not and within what limits freedom of testation shall be permitted. In all societies, inheritance has developed as an incident of kinship. Even in a society in which property is regarded as belonging to individuals rather than kinship groups, the feeling of belonging to one's group is still so strong, especially between parents and children, that a person's sense of freedom would not be complete unless he knew that he could pass on his possessions (legacy) to his children. The question arises, however, whether inheritance shall extend beyond the circle of those persons with whom the decedent was connected by ties of affection or about whose well-being he or she was, or should have been, concerned. In the urbanized, mobile population of highly industrialized nations, the family as a felt unit has tended to shrink to the small circle of husband, wife, and children. Ties of relationship tend to be weak even among first cousins.

      In an age of expanding demands on government, there has been an inclination to let the estate of a person dying intestate pass to the public treasury rather than go to enrich distant relatives. In England (United Kingdom) the circle of intestate takers has been limited by the Administration of Estates Act of 1925 to relatives no more remote than the grandparents, uncles, and aunts of the deceased. Even more restrictive than those of England are the intestacy laws of communist countries. Under the law of the Soviet Union (Soviet law), intestate succession did not extend beyond descendants, the surviving spouse, grandparents, brothers, sisters, and incapacitated persons who had been dependent upon the decedent for at least one year prior to his death.

      Another way of limiting the rights of remote relatives for the benefit of the public treasury consists in increasing the rates of inheritance taxes (inheritance tax) in proportion to the remoteness of the relationship between the takers and the decedent. In the United States, although the federal tax on succession depends solely on the size of the estate, the additional inheritance taxes (taxation) levied by the states are widely patterned upon the closeness of relationship. This method is also employed in numerous other countries but not, since 1949, in England.

      Inheritance law is also used to reduce inequalities in the distribution of wealth. This may be done by compulsory partitions, as under the laws of the French and the German pattern, or by means of progressive inheritance taxation, as in the United Kingdom or the United States, or by a combination of both. The law of inheritance and inheritance taxation thus functions as an instrument of social policy.

      An impressive illustration of the way in which the law of inheritance serves social policy is the series of modifications to Soviet inheritance legislation. In the early stage of the Bolshevik Revolution, inheritance was limited to the descent of a modest amount of property to close relatives or to the surviving spouse, provided they were in need. The limit upon the amount of the property was lifted in 1926; and the requirement of need was also abolished for inheritance by the surviving spouse, descendants, parents, grandparents, brothers, and sisters. Under the civil code of 1922, the power of testation was limited to increasing or reducing the share of particular intestate successors. After 1961 property could be left to any person. Private property could not exist in the means of production, and therefore inheritance was limited to goods of use or consumption and to savings accounts. Within the limits stated, inheritance and freedom of testation were regarded as constituting useful incentives to productivity without constituting a danger to the socialist system. Inheritance of private property was thus listed in the constitution of 1936 and reaffirmed in the constitution of 1977 as one of the rights of citizens.

Prime issues in inheritance and succession

      In a society in which inheritance exists, two issues are of prime importance for the distribution of wealth and for the social and political structure of the society: (1) the issue of the extent to which owners of property shall have the power by their own decision to determine the course of inheritance and (2) the issue of whether or not estates shall be allowed or even required to pass undivided to one single heir.

Freedom of testation

      The power of an owner of property to determine who is to have it upon his death is thought to stimulate economic activity: it is also considered desirable that a property owner be allowed to modify the rigid rules of the intestacy laws so as to adapt them to the particular situation of his family by preferring, for instance, a disabled child over one of proven capacity. The freedom to disinherit a child may be used to induce filial obedience, but freedom of testation also implies the freedom of making provision for charity. The possibility of abuse for ends of spite, arbitrariness, or whimsy is the price society has to pay for such power. Freedom of testation developed slowly, and nowhere does it exist without limitations. The questions of what the limits shall be, especially to what extent an owner of property shall be free to disinherit close members of his family and to what extent he shall have the power to tie up property from beyond the grave, have been answered in widely diverse ways.

Historical development

      In a primitive or archaic society in which property is owned by the kinship or neighbourhood group rather than by individuals, freedom of testation cannot exist. Transition from group to individual ownership has rarely if ever occurred in one single step. As to land, even when its use was regarded as rightfully belonging to an individual, its free alienation by sale or gift, and even more so by will, was for long periods hedged in by superior rights of the kinship group, the village, or the feudal lord. Transition to free alienation has often been achieved by means of subterfuge, such as the adoption of the “purchaser” or “devisee” as a son, or, once free alienation had become possible inter vivos (between living persons) but not yet upon death, by fictitious sale or gift to a middleman who would promise to let the grantor keep the property as long as he should live and upon his death to deal with it as directed by the grantor. Such use of adoption occurred in ancient Babylonia, China, Japan, India, and other societies of an archaic patriarchic order. In ancient Greece (Greek law) effects similar to those of a will were achieved by gift, to take effect upon the death of the donor or, where the only child of the family was a daughter, by giving her in marriage together with the estate. Transfer by use of a middleman became possible among the Germanic peoples following the decline of the Roman Empire (Roman law).

      In ancient Rome the institution of the will appeared at an early stage of cultural development, but there, too, it seems to have been preceded by a stage in which its effects could be achieved only by indirection. The so-called will made in assembly (testamentum comitiis calatis) seems to have been the approval by the assembly of the adoption of a son by the childless chief of an aristocratic house so that the house and the worship of its deities would be perpetuated.

      By the 5th century BC the head of a Roman family seems to have been able during his lifetime to achieve the purposes of a testamentary transaction by fictitious sale to a middleman, familiae emptor (purchaser of the family property). In the period of the early principate (1st century AD), the testament was fully recognized in its proper sense. In the mature form in which it is dealt with in the Corpus Juris (6th century AD), it became in the late Middle Ages the model for continental Europe.

      Among the Anglo-Saxons and other Germanic peoples, land was subject to ties of the kinship group and, later, of feudalism, so that there was no place for disposition by will. Chattels were more freely alienable. In establishing freedom of testation, a prominent role was played by the church (Roman Catholicism), which desired thereby to obtain funds for its activities, which included the bulk of medieval education, charity, and cultivation of the arts. In England the church succeeded shortly after the Norman Conquest in establishing the jurisdiction of its courts for matters concerning succession upon death to personal property. Through the church the will of the Roman pattern became firmly institutionalized, but a testator still had to leave a “reasonable part of the estate” (ordinarily at least one-third) to his wife and children (family law).

      Once the alienation of real property had again become possible by gift or sale, there grew up all over Europe that same practice of indirectly achieving the effects of a will by fictitious grant to a middleman (German Salmann, “sale man”; English feoffee to uses) that, in analogous circumstances, had grown up at other times and places. On the Continent, the will as such became again available when Roman law was rediscovered and “received,” which occurred from the 11th century onward, first in Italy and then north of the Alps. In France and Germany the will of the Roman pattern was fully recognized in the late 15th century. Just about that time, however, the enfeoffment (feoffment) to uses, which had been popular in England, was abolished by Henry VIII's (Henry VIII) Statute of Uses in 1535. The King wished to restore to the crown its prospects of escheat and of certain feudal duties, which could be evaded by the alienation to uses. Public indignation was so strong, however, that five years later the King found it advisable, by the enactment of the Statute of Wills, to open the way for true testamentary disposition of land. Restrictions limiting devises of those lands of which ownership was connected with the duty of rendering military service were abolished at the time of the Restoration by the Military Tenures Act of 1662. In Scotland (Scottish law), testamentary disposition of land remained precarious until the enactment of the Titles to Land Consolidation Act in 1868.

Limits on freedom of testation

      Freedom of testation has never been absolutely unlimited. Nowhere is a testamentary provision valid if its enforcement would be shocking to public morals. When a testamentary gift is conditioned upon an act of the beneficiary that in good morals should not be so conditioned, as, for instance, a gift conditioned upon the beneficiary's changing his religion, the gift is either invalid or valid unconditionally. Generally, property given by testament cannot be tied up by the testator for an indefinite future. Under the rule against perpetuities, as developed in England and commonly applied in the United States, a testator may leave property to a person for life and upon the first taker's death to some other person; but the last “remainder” must “vest” not later than, roughly speaking, one generation after the testator's death or, in England, since the Perpetuities and Accumulation Act of 1964, a fixed period of years up to 80. In the civil-law countries of the German system, the freedom to provide for substitutions is limited in similar ways, but in those of the French system it is limited much more strictly.

      A testator's freedom to disinherit a surviving spouse, children, or other heirs has been more extensive in ancient Roman and modern Anglo-American law than in the modern civil-law countries, but it has always had limits. In republican Rome a testator had the power to disinherit a spouse and children, but if he wished to do this he had to say so expressly in the will. In the period of the principate (27 BC–AD 284), it became necessary to state the reasons, because a will disinheriting a close member of the family without reasonable and honest cause was in danger of being declared invalid. In the late Roman Empire the descendants—and if there were no descendants, the ascendants (e.g., parents)—were given the right to a share in the estate (pars legitima), of which none of them could be deprived except upon serious cause stated in the will. When, after the fall of the Roman Empire, testamentary disposition came to be recognized again in the later Middle Ages, custom generally required that some minimum share, frequently one-third, be left to the surviving spouse, or the descendants, or both. Upon the revival of Roman law on the European continent and in Scotland, these customs were in various ways combined with the rules of the Corpus Juris.

      In the modern civil law, two systems are used to provide protection against disinheritance. Under the French system, a testator who is survived by descendants, parents, or (in some countries) brothers, sisters, or even other close relatives, cannot dispose at all of the “reserved portion” of his estate, the size of which depends upon the number and the degree of nearness of relationship of the surviving “forced heirs.” Under the civil code of France, for instance, donations inter vivos or by last will cannot exceed one-half of the property of the disposer, if he leaves at his decease one child; one-third, if he leaves two children; and one-fourth, if he leaves three or a greater number. The indisposable share is one-half of the property if the disposer, having no children, leaves ascendants of both his father's and his mother's lines and three-quarters if he leaves ascendants in only one line. Under the German pattern, the surviving spouse, a descendant, or, if there are no descendants, a parent can claim to be paid in money one-half the value of the share that would have been his in the case of intestate succession.

      In England those customs that required a minimum share in the personal property to be left to the surviving spouse and descendants disappeared in the 17th and 18th centuries. The interest of dower, which guaranteed a life estate to the widow in one-third of each parcel of the real estate of the predeceased husband, lost its protective effect in 1833. At the turn of the 20th century, freedom of disinheritance was complete in England as well as in the dominions but not in Scotland. There, in the movable estate, the legitim (bairn's part) is still reserved to the children, the ius relicti to the widower, and the ius relictae to the widow. Until 1964 (in immovables) the widower was entitled to curtesy, a life rent in his wife's heritage (i.e., immovable) property, and the widow had the right of terce—i.e., a life rent out of one-third of her husband's inheritable estate. In England, freedom of testation, while unlimited by law, was kept within narrow limits by the custom among wealthy families of preventing the splitting up or alienation of the family wealth by means of a so-called strict settlement. In each generation, the head of the family would settle the estate upon the eldest son in such a way that it would descend to him undivided but subject to a generous life estate for the widow and to provisions for the daughters, younger sons, and other needy relatives.

      In the different social climate of New Zealand, a new device for protecting needy family members against disinheritance was invented with the enactment, in 1900, of a statute that empowers the court to order adequate provision for the maintenance of a spouse or a needy child out of the estate of any testator who has not made such provision. Family provision acts of this kind have since been enacted in Australia, Canada, and England.

      Under the English Inheritance (Family Provision) Act of 1938, as amended in a series of enactments, the court, if it found the decedent had failed to make reasonable financial provision for the applicant, was empowered to order maintenance from the estate to the surviving spouse, an unmarried daughter, a minor son, any incapacitated child, or an unmarried former spouse of the decedent. The scope of this system of discretionary financial provision was extended by the Inheritance (Provision for Family and Dependents) Act of 1975. Under that act, the standard for provision for a surviving spouse is no longer limited to maintenance but is a reasonable share of the deceased's estate. The class of applicants has been widened to include any person treated by the deceased as a child of the family and any person who was being wholly or partly maintained by the deceased immediately before his death.

      In the United States the surviving spouse is protected against complete disinheritance in every state through one or more of the following devices: dower, indefeasible share, community property, homestead, or family allowances. The most widespread is the indefeasible share, which guarantees to the surviving spouse a certain portion, usually expressed in terms of a fixed dollar amount plus a fraction or, under older statutes, as just a fraction, of the decedent's estate. The weakness of this system, however, is that the indefeasible share can be diminished or wiped out if the decedent has given away most or all of his property before his death. A number of states have tried to remedy this difficulty by permitting the surviving spouse's rights to be asserted against certain inter vivos transfers.

      In many states the indefeasible share system exists alongside a modernized version of the old common-law estates of dower and curtesy, which have now been generally assimilated to each other under the single heading of dower. Under some statutes each spouse's dower rights attach upon marriage to any real estate owned by the other spouse and upon acquisition to any real estate acquired by the other spouse during the marriage. These rights cannot be affected during the marriage by any transaction of the owner-spouse without the other's consent. Upon the death of the owner-spouse, dower entitles the surviving spouse to a life estate in all or part of the real estate of the predeceasing spouse. Dower has long ceased to be the major device for protecting a surviving spouse against disinheritance because it applies only to real estate and thus offers no security at all in the situation where the wealth of the predeceasing spouse was only or mainly composed of personal property such as savings or shares of stock. A further reason for the decline of dower is that a system of marital rights in real estate that cannot be defeated by sale, gift, mortgage, or will of the owner-spouse came to be seen as a clog on marketability and a threat to the security of titles. Thus, several states have followed the example of England and have abolished dower altogether, while a number of others have redefined dower as an interest that attaches only to whatever real estate is left upon the death of the predeceasing spouse.

      In those U.S. jurisdictions that have adopted the so-called community-property (community property) system, an indefeasible share in the family wealth is secured to the surviving spouse by his or her being entitled to one-half of the community property, which generally consists of the property acquired during the marriage by the gainful activities of either spouse. Varying systems of community property also exist in numerous European and Latin-American countries. In the countries of the French system, community-property law applies unless it has been expressly contracted out by the parties to the marriage. Under the Scandinavian system, the assets of husband and wife remain separate during marriage but upon the termination of the marriage are distributed between them. Protection of the surviving spouse can, furthermore, be achieved through homestead laws and family allowance laws that guarantee to the widow or the widower an award of income payable out of the estate for a few months immediately following the death of the other spouse.

      The only jurisdictions in the United States that protect descendants against disinheritance by giving them indefeasible shares are Louisiana and Puerto Rico, whose legal systems are not derived from the common law. In the other states the descendants are protected either not at all or only indirectly and incompletely by (1) “pretermitted heir” statutes, which, like early Roman law, require the testator to state the disinheritance of a descendant expressly in the will, or (2) “afterborn heir” statutes, under which a child born after the making of the will receives his intestate share unless a contrary intention is stated in the will, or (3) “charity begins at home statutes,” under which no more than a certain fraction (e.g., one-half) of the estate may be given to charity by a testator who is survived by certain close relatives, or (4) “hellfire statutes,” which declare ineffective a testamentary provision for charitable purpose made by the testator upon his deathbed, in his last illness, or within a fixed period immediately preceding his death.

      In the Soviet Union a compulsory share of one-third of the decedent's intestate share was guaranteed to his minor children and to any of the following who were unable to work: the decedent's children, spouse, parents, and those who had been dependent on him.

Divided or undivided inheritance

      Like the problem of whether and to what extent freedom of testation shall be permitted, the question of whether a person's estate may pass undivided to one person or whether it should be divided among several takers has significant political implications. The issue has been especially important in the history of Anglo-American law, where it is usually referred to as the problem of primogeniture (primogeniture and ultimogeniture). The term is too narrow, however, because the sole heir need not necessarily be the first-born son (primogenitus). Under the system of ultimogeniture, which existed in parts of England as the custom of Borough English, and also under the German National Socialist law of 1933, the person favoured was the youngest son; under systems of seniorate or juniorate, it is the oldest or youngest member of the family; under that of majorate or minorate, it is the oldest or the youngest person standing in equal degree of consanguinity to the decedent. There have also been cases where certain lands have been reserved to the second-born son and his line (secundogeniture) or the third-born and his line (tertiogeniture), etc.

      In England, undivided inheritance was applied to real (real and personal property) but not to personal property. The distinction between the two kinds of property was important in the struggle for power between church and state. In medieval England the organization of society in general and of the army and the public offices in particular was based upon the distribution of the ownership of the land, over all of which the king was lord paramount. The church, on the other hand, concerned itself with divine worship, the care of the sick and poor, and the cultivation of learning and the arts. After the Norman Conquest a compromise was worked out between the king and the church, under which the royal courts exercised jurisdiction over real property while succession to personal property was to be the concern of the ecclesiastical courts (ecclesiastical court). Until 1926 descent to real property thus was subject to rules different from those applying to the distribution of personal property. For the former, the common-law courts developed a system that tended to maintain the existing military and social order through unpartitioned descent of land to one heir rather than division among several coheirs and, for a long time, by reluctance in admitting freedom of testation.

      As to personal property, however, the ecclesiastical courts favoured a freedom of testation that allowed a decedent to leave part of his property to the church for the promotion of its manifold activities. In case of intestacy, the church favoured distribution among family members of equal nearness to the decedent. It applied rules, similar to those laid down in the 6th century by the Roman emperor Justinian (see below Intestate succession: Roman law (inheritance)), that in 1670 were fixed in the Statute of Distribution. The problem about which the two sets of courts differed—namely, whether an inheritance should be split up among several coheirs or pass undivided to a single heir—has, of course, not been limited to England. Unpartitioned inheritance has occurred in the most diverse civilizations—among the Khoekhoe of southwest Africa, the Maori of New Zealand, the inhabitants of the Tonga islands, in parts of China and Siberia, and in western Europe.

      Why and how primogeniture became the common-law system of inheritance of freehold real estate is not clear. Primogeniture obviously served the needs of feudalism, in which the ownership of a parcel of land tended to be connected with a public office or with military duties that could not be well divided among several people. Partition was also likely to result in confusion regarding the services the peasants (peasant) were bound to render to the landlord. At the peasant level, primogeniture prevented holdings from being split up until they were too small to allow a family to make a living. Attempts to avoid physical partition by selling the land and dividing the proceeds were impracticable in a society in which it was considered important to preserve family ownership of the farm and in which money was not readily available.

      In spite of these circumstances, undivided descent of land to one heir never was the exclusive system among the European peasantry. It became, however, the almost universal system among the nobility, who were anxious to preserve intact the family wealth. In order to achieve this purpose, it became necessary, after alienability of land and freedom of testation had developed, not only to establish unpartitioned descent as the rule of intestate succession but also to “ entail” the land—i.e., to prevent the owner from selling, giving away, or encumbering the land as well as from disposing of it by will. In England varying legal devices were used from the 13th century on. After the 17th century the so-called strict family settlement became the principal device, while on the Continent the fidei commissum of late Roman law was adapted to serve the purpose. The political power secured in this way to the nobility and gentry enabled it, as the necessary counterpart of primogeniture, to secure for the younger sons the lucrative positions in the church, the army, and, on the Continent, the expanding bureaucracy. In the 18th century this system was attacked both by the supporters of democratic ideals and by the economists of the classical school. To the latter, entails were objectionable because they not only stood in the way of mortgaging the land for purposes of improvement but also because inalienability prevented its coming into the hands of the most efficient cultivator. The system was first destroyed in the British colonies in New England, and in the course of the American Revolution it was swept away in the other states. In Europe, it collapsed during the French Revolution, and in the Napoleonic Code care was taken to prevent its reestablishment. Not only were all descendants or other relatives of equal degree to take part equally in intestate succession but also, by giving each child the right to a minimum share, a testator was prevented from giving all to one child.

      In England the main object of the economists' attack upon settlements was removed when, through a series of statutes, settled lands were gradually restored to the market; life tenants were thereby given the power under certain circumstances to mortgage or sell the land. Stocks and bonds, which had become a form of wealth more important than land, could, and still can be, tied up by means of a trust; but through the impact of heavy death duties this power has now been restricted. Primogeniture as the rule of intestacy was finally abolished by the Administration of Estates Act in 1925.

      On the Continent, equal division among descendants and other relatives in equal degree became the general rule in the codes of the 19th century, but in certain countries, especially Austria and Germany, the possibility of entail lingered on until World War I. A new argument came to be used, however, in favour of unpartitioned inheritance of land in the 19th century. First in France and then in central Europe and Scandinavia, the argument was put forward that agricultural holdings were being reduced to less than the size necessary to provide a living for a family and that the old peasantry was thus in danger of being driven from the land. This led to the enactment of special laws on farm inheritance in sections of Austria, Germany, and Scandinavia. These laws, while providing unpartitioned inheritance in the case of intestacy, most often left unimpaired the power to provide for multiple succession by will and the power of alienation by sale. A more radical farm-inheritance law was enacted in Germany in 1933 by the National Socialists. It provided not only for undivided inheritance but also forbade partition by will and even the sale of the farm or its encumbrance by mortgage. The peasantry was to be secured as a social class living on the soil, removed from the vicissitudes and temptations of a market economy, although the law allowed the state to remove an unproductive holder. The law was repealed after World War II, but statutes attempting in milder ways to counteract the partitioning of farmsteads have been enacted. Even in France, the civil code was amended by a chain of laws beginning in 1922 so as to postpone, at least temporarily, the physical partition of a farmstead and certain other small holdings.

intestate succession

      Insofar as the course of succession is not determined by will, it is regulated by the laws of intestate succession. The legal systems of the world present a bewildering variety of intestacy laws, but they all have one feature in common: the intestate takers of the estate of a decedent are universally persons standing to him in a relation of kinship. Consequently, the composition of the group of successors in a society in which kinship is organized matrilineally is different from that of a society of patrilineal or, in modern society, bilineal kinship organization. Whether or not a surviving spouse belongs to the kin group of the decedent depends again on the way in which kinship is organized in the society in question. In modern laws, the surviving spouse is universally given some place in the table of successors, even though he or she may not be regarded as kin, or a relative, of the decedent.

Historical development

      In preliterate society (social structure) the order of succession seems to be basically determined by the kinship structure. But in both archaic and developed societies the laws of intestacy have often been distorted by traditionalism, so that features once well adapted to the structure of the family were preserved into periods in which that structure had assumed new shape. The formalism that is characteristic of archaic legal systems (and often occurs in developed ones) tends to generalize rules that have originated in connection with special situations into applications beyond their initial scope. Intestacy laws have thus frequently looked obsolete, confused, or arbitrary. Even the Roman law of the Twelve Tables (Twelve Tables, Law of the) (c. 450 BC) seems not to have fully accorded with the social needs of its day.

Roman law

      The basic unit of society in ancient Rome was the “house,” the extended family (family law) ruled by its head, the paterfamilias, to whom his wife, his slaves, and possibly several generations of his descendants were subject and in whom title to all property was vested, so that a son or any other member of the house, even as an adult, did not own anything until he had been released from membership by emancipation. The paterfamilias was responsible for all liabilities incurred by any member. The Roman house of those early times resembled the system that prevailed in Japan until very recently. But whereas in Japan the leader of the house had just one successor, under the system of the Twelve Tables the Roman paterfamilias was succeeded by as many new ones as there were sui heredes—i.e., persons who by the death of the chief were freed from his power and thus became persons sui iuris. If a house chief died without being survived by sui heredes, the law of the Twelve Tables provided that the estate (familia) could be acquired by the nearest agnatic relative—i.e., the person related to the decedent by male descent who would be closest to him. If there was no such person, the estate could be had by the Gentiles, who seem to have been the clanlike group—composed of all descendants of a real or mythical ancestor—that apparently had ceased to play a significant role in Roman society even at the time of the Twelve Tables. This arrangement for succession seems to have been so unsatisfactory that it became customary—and even a moral, religious, and political duty—to eliminate its coming into play by the execution of a testament. The very name “intestate succession” (successio ab intestato) indicates that dying without having made a will constituted an exceptional situation.

      As Rome grew into an empire, the system of the Twelve Tables became less and less satisfactory. The house of olden times receded in significance; relationship through females came to play as much a role in the consciousness of the people as that through males; and wives mostly ceased to be subject to the power of their husbands or their husbands' house chiefs. Adaptation of the law to the new structure of the family was made, first by the heads of the judicial system, the praetors, and then by imperial legislation. But the changes were unsystematic and halfhearted. In its final stage, the intestacy law became such a patchwork that in AD 543 and 548 the emperor Justinian (Justinian, Code of) found it necessary to make an entirely new beginning. By Novels (Novellae Constitutiones post Codicem, part of the Corpus Juris Civilis), a new order of intestacy was established. Relatives of a decedent were divided into four classes: (1) the descendants of the decedent, (2) the ascendants of the decedent, his brothers and sisters of the full blood, and the children of brothers and sisters of the full blood, (3) the decedent's brothers and sisters of the half blood and the children of such brothers and sisters, and (4) the other collaterals of the decedent related to him in the nearest grade of consanguinity. No person in a more remote class was to succeed as long as the decedent was survived by a member of a prior class. The surviving spouse stood outside the four classes of relatives. He or she was to succeed only if there was no relative at all. As long as any relative, no matter how remote, could be found, the family wealth was not to be diverted from the bloodline. But a widow's needs were ordinarily taken care of by the dowry, which, given to the husband, usually by her family, at the time of the marriage, was to be hers after the husband's death. For the exceptional case of a “poor widow”—i.e., a widow without dowry—a share in the estate was provided. Distribution among members of the same class was not in all respects clearly regulated by Justinian's text, and so several points remained controversial.

common law

      Justinian's scheme was influential in the practice of the English ecclesiastical courts in their dealings with personal property. But in England the surviving spouse was treated much more generously. A surviving husband had no need to succeed to his wife's personal property upon her death. With the sole exception of choses in action not reduced to possession (i.e., liabilities due to the wife not yet paid), he already owned all of her personal property by virtue of the marriage. But English custom gave the widow one-third of her predeceased husband's estate if he was survived by descendants and one-half if he was survived by other relatives. English ecclesiastical court practice also clarified some of the points that had been left open in Justinian's codification, abandoning the distinction between the siblings of the full blood and those of the half blood (although under the Canons of Descent to real property applied by the secular courts, the latter remained excluded). The English ecclesiastical practice was codified in the Statute of Distribution in 1670. This in turn became the model for state legislation in the United States, although the state laws show considerable variation in many respects.

civil law

      While the Anglo-American system has largely adopted the Roman order of succession, many of the civil-law countries appear to have followed the Germanic (Germanic law) system of parentelic order.

      The first parentela, or order, consists of the descendants of the decedent; the second, of his parents and their descendants collateral to the decedent; the third, of his grandparents and their descendants collateral to the decedent, etc. As long as there is any person standing in a nearer order, no person standing in a more remote one can succeed. In each parentela, persons of a lower grade exclude those of a higher grade. Variations exist in several respects. A person who stood in the first two orders but who predeceased the intestate is generally represented by his descendants; as to the more remote orders, the legal systems differ, as they do also with respect to the question of whether, insofar as representation takes place, the distribution is by roots or by heads. (When distribution is by roots—per stirpes—the estate is divided into as many parts as there are living and dead, but represented, persons standing in the same grade; when distribution is by heads—per capita—the estate is divided into as many parts as there are living persons entitled to sharing.) Considerable differences also exist in the treatment of the surviving spouse of the decedent.

Intestacy in present law

      In recent times intestacy has been the subject of much legislation. Since the purpose of intestacy is to fill the void left where a decedent has not effectively disposed by will, lawmakers tend to create rules corresponding to those, which, in their opinion, a reasonable testator would have made. But they may also be inclined to lay down rules that they think testators ought to follow in the interests of social policy.

Modern tendencies

      Among the most conspicuous trends of modern legislation is the vanishing concern about keeping property within the bloodline through which it came to the decedent. This traditional idea, which was particularly strong with respect to land, had in the field of intestacy resulted in the so-called rule of ancestral estate. In Anglo-American law the doctrine of ancestral estate was part of the Canons of Descent of real estate. It meant that if an intestate died without descendants, property that had come to him from ancestors should revert to the line whence it had come. In England the principle was abolished in 1925, and in the United States, too, it has practically disappeared. In civil-law countries, where it was once known as jus recadentiae, the principle has disappeared, except in the Spanish province of Aragon. But France has preserved the related ideas of the fente and the droit de retour. Under the former, the estate is divided equally between the paternal and the maternal lines (and under the refente between the various lines of grandparents). Under the droit de retour, assets that were received as a gift by an intestate who dies without descendants return to the donor. The once widespread idea that, among collaterals, relatives of the full blood occupy better positions than those of the half blood survives in France, in several Latin-American countries, and, in several different forms, in some jurisdictions of the United States.

      Changing attitudes about sex and marriage, but also about the equality and dignity of human beings, are widely finding expression in laws assimilating the legal situation of persons born out of wedlock (illegitimacy) to that of legitimate children. The equation of an illegitimate child (child welfare) with a foundling long ago disappeared from common-law systems, but it still persists in the laws of France and of countries following the French pattern, where a child born out of wedlock lacks legal relationship not only to his father but also to his mother until the relationship is formally recognized or established. Where parentage is established, a 1972 French law gives a child born out of wedlock nearly the same inheritance rights as a legitimate child, including the right to an indefeasible share of the parent's estate. An exception remains, however, for children conceived while their father or mother was married to a third person. In such cases, the child is not barred from inheritance altogether, but his or her rights are less than those of a surviving spouse or legitimate children.

      In contrast, rights of inheritance between the illegitimate child and his mother have long been recognized in other jurisdictions, including those of the common law and of the civil law other than the French type. Impetus to the recognition of inheritance rights between an illegitimate child and his father was given by Norway's Castberg Law of 1915. Similar legislation now exists in the other Scandinavian countries, in the Federal Republic of Germany, in several countries of Latin America, in the countries of eastern Europe, in England under the Family Law Reform Act of 1969 and the Legitimacy Act of 1976, in Scotland under the Law Reform Act of 1968, and in several states of the United States. The statutes vary greatly with respect to such details as the mode in and the time at which paternity must be ascertained, the extent of the child's share in the estate, the question of the extent, if any, to which illegitimate relationship creates rights of intestate succession from or through an illegitimate, and the illegitimate's rights to intestate succession to kindred of his father or mother.

Rights of spouses

      There is also a widespread trend toward improvement of the successoral position of the surviving spouse, often even favouring the spouse above the decedent's blood relatives. Benefits for a surviving spouse can, of course, be achieved by devices other than rights of inheritance. A method of great antiquity is the giving of a dowry, meant to sustain a woman after the death of her husband. In societies in which dowries are customary, the “poor widow” who lacks a dowry can then be helped by an exceptional right to a share in the estate, as was provided in Justinian's reform of the Roman law; this provision still exists in the state of Louisiana for the widow or the widower. A widow may be given a claim for support out of the estate, as in Austria (and in France between 1891 and 1925). Such support may even be provided for a wider circle of persons dependent upon the decedent, as in the family provision laws of England, New Zealand, and other Commonwealth countries.

      Benefits for a surviving spouse can also be provided through some system of community property, as found in numerous civil-law countries and in some states of the United States. The community fund may consist of the acquests made during marriage through the exertions of either spouse or, additionally, of the movable assets owned by either spouse at the initiation of the marriage or even of all property owned by the spouses. Upon one spouse's death, the fund is split into halves. One half constitutes the survivor's share in the community and thus belongs to him, whereas the estate of the predeceasing spouse consists of the other half of the community, along with such assets as the predeceasing spouse may have owned as his separate fund. The law may or may not then grant the surviving spouse an intestate share of the estate. Still another way of providing benefits for a surviving spouse is to give him a life estate in certain assets of the predeceasing spouse, as is done in the common-law institutions of dower and curtesy. French law, under certain circumstances, gives the surviving spouse a share in the estate or in a fraction of it.

      Of great and increasing practical importance are the rights to pensions, social security benefits, and damage claims arising from the death of a married person, which are now universally available to a surviving spouse. Improvements in the right of a surviving spouse to share in the married couple's capital have been brought about in France, England, and numerous U.S. jurisdictions by giving him a preferred position in the scheme of intestate succession or, as in Scandinavia, by giving the surviving spouse a share in the acquests made during marriage by the exertions of both spouses or, as was developed in the Federal Republic of Germany, by a combination of both devices. This revalorization of the surviving spouse is the consequence of several factors, including the weakening of family ties, the decreasing importance of inherited wealth, and the diminishing willingness of children and aged parents to share the same household. In addition, the feeling has grown that a wife who stays at home to run the household and bring up the children, instead of going out and earning a living of her own, enables her husband to act as the breadwinner and is therefore entitled to a share in his accumulated earnings.

Examples of existing laws

      Intestacy laws vary widely in detail. The principal features of the intestacy rules of England, the U.S. state of New York, the U.S. Uniform Probate Code, France, and the former Russian Soviet Federated Socialist Republic are presented below.

England

      The complex provisions of the Administration of Estates Act of 1925, as amended by the Intestates' Estates Act of 1952 and the family provision legislation (see above), are based on the following scheme:

      1. The relatives of the decedent are grouped in seven classes. No member of a class takes in intestacy as long as any member of a preceding class has survived the decedent. The classes are (a) descendants per stirpes, (b) parents, (c) brothers and sisters of the full blood, a deceased brother or sister being represented by his descendants per stirpes, (d) brothers and sisters of the half blood, such a deceased brother or sister being represented by his descendants per stirpes, (e) grandparents, (f) parents' brothers and sisters of the full blood, and (g) parents' brothers and sisters of the half blood.

      2. A surviving spouse takes, if the decedent is survived by descendants, the “personal chattels”—i.e., the assets of the household—£75,000 (£125,000 if the estate is worth more than £125,000), and a life estate in one-half of the remaining part of the estate. If the decedent is not survived by descendants but is survived by parents or by brothers and sisters of the full blood or by descendants of such brothers and sisters, the surviving spouse takes the personal chattels, £125,000, and one-half of the remaining part of the estate. If the decedent is not survived by any of the above, the surviving spouse takes all.

      If the intestate share of the surviving spouse, or of any person enumerated in the Inheritance Act of 1975 (see above Limits on freedom of testation (inheritance)), is insufficient to provide reasonable maintenance, the court may order that provision for such persons be made out of the estate.

New York State (New York)

      Under the New York Estates, Powers and Trusts Law of 1966, as amended, relatives, grouped under the parentelic system, take by intestacy up to, but not beyond, the parentela of the grandparents. In the first and second parentelas, distribution is per stirpes; in the third, it is per capita among persons standing in the same grade. If the decedent is survived by at least one child or the issue of at least one child, the surviving spouse takes $50,000 in money or intangible personal property and one-half of the residue; if no children or their issue survive, the spouse takes all.

Uniform Probate Code (U.S.)

      The latest state of U.S. thinking is expressed in the Uniform Probate Code, approved in 1969 and amended in 1975, 1982, 1987, 1989, 1990–91, and 1997 by the National Conference of Commissioners on Uniform State Laws and the American Bar Association. It has been adopted in several states and has significantly influenced law reform in others. Its provisions on intestacy are as follows:

The intestate share of a surviving spouse who was married to the decedent for at least 15 years is:

(1) The entire intestate estate if there is no surviving issue or parent of the decedent;

(2) $200,000 and three-quarters of the remaining estate if there is no surviving issue but the decedent is survived by a parent or parents;

(3) $150,000 and one-half of the remaining estate if there are surviving issue all of whom are also issue of the spouse and the spouse has issue from a prior marriage;

(4) $100,000 and one-half of the remaining estate if there are surviving issue one or more of whom are not issue of the surviving spouse.

In cases where the surviving spouse was married to the decedent for less than 15 years, the spouse receives less than half of the remaining estate, the amount increasing by approximately 3.25 percent for every year of marriage under 15.

      (For states with community-property laws, an alternative provision on the intestate rights of the surviving spouse exists.)

The part of the intestate estate not passing to the surviving spouse…, or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) to the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) if there is no surviving issue, to his parent or parents equally;

(3) if there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree then those of more remote degree take by representation;

(4) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

France

      The French Civil Code was enacted in 1804, and its provisions of intestate succession have been changed many times. With respect to the surviving spouse, one must take into account the one-half share in the marital acquests that belongs to the surviving spouse unless some other arrangement was agreed upon at the time of the marriage.

      The relatives are grouped in four classes, and no member of a more remote class succeeds as long as there is one of a prior class. The four classes are (1) descendants per stirpes, (2) parents, brothers, sisters, and children of brothers and sisters, (3) ascendants other than parents, and (4) collaterals other than group 2, up to and including the 6th grade of consanguinity (i.e., first cousins and grandchildren of great-grandparents).

      The surviving spouse, in addition to a one-half share in the marital community fund, has the following rights in intestate succession: (1) a life interest in one-fourth of the estate if the decedent is survived by descendants, (2) a life interest in one-half the estate if the decedent is survived by ascendants in both the maternal and paternal lines or by certain collaterals (brothers, sisters, or their descendants), (3) one-half the estate outright if the decedent is survived by an ascendant in one line only, and (4) the entire estate if the decedent leaves no descendants, ascendants, or any of the above-mentioned collaterals.

      With the recognition of Civil Solidarity Partnerships in 1999, the laws governing intestate succession by surviving spouses were extended to cover unmarried, usually cohabiting, partners of decedents.

The R.S.F.S.R.

      The civil code (Soviet law) of the former Russian Soviet Federated Socialist Republic (1964) provided the following order of intestate succession: (1) children, spouse, and parents of the decedent, in equal shares, a deceased child being represented by his child or children and a deceased grandchild by his child or children, and (2) brothers and sisters of the decedent and his paternal and maternal grandfathers and grandmothers, in equal shares.

      Intestate takers in the first group also included those persons who, unable to work, had been dependent upon the decedent for not less than one year prior to his death.

      Ordinary household furnishings and articles passed to those intestate takers who had lived with the decedent for not less than one year prior to his death, without regard to their class or statutory shares.

Wills (will)

      A will, or “testament,” is the legal transaction by which an owner of property disposes of his assets for the event of his death. The terms are also applied to the written instrument in which the testator's dispositions are expressed. While in modern usage the terms will and testament are interchangeable, in traditional Anglo-American law “will” referred to the disposition of real property and “testament” to that of personal property.

Formalities of wills

      A will must be declared in the form of an instrument in writing. A nuncupative (orally declared) will is exceptionally admitted in some jurisdictions in emergency situations, such as those of the soldier on active war duty, the sailor on board ship, or a person finding himself in immediate danger of death.

      In their rules establishing the requirements for the execution of a regular testamentary instrument, the legal systems of the modern world usually follow one or more of three forms: (1) the witnessed will as developed in England, especially through the Statute of Frauds of 1677, (2) the unwitnessed holographic will as developed in French customary law, and (3) the notarial will as developed in the late Roman Empire. Under the system of the witnessed will, which prevails throughout the United States and in all common-law parts of the British Commonwealth, the instrument, which may be typed or printed or written by anyone, must be subscribed by the testator, and his signature must be attested to by two (in some states, three) witnesses, who must also sign their names to the instrument. Under the system of the holographic will, which is available not only in most civil-law countries but also in numerous states of the South and West in the United States, the entire instrument, generally including the date and the indication of the place of execution, must be exclusively in the testator's own handwriting and must also be signed by him; witnesses are not required. The notarial will, which is also available in most civil-law countries, is executed so that the testator either dictates its provisions to the notary or hands him an instrument declaring that it contains his will. (In civil-law countries, a notary is not a layperson but a respected member of the legal profession who is experienced in matters of drafting wills, estate planning, and conveyancing.)

      The proper drafting of a will can be difficult. In the United States it is complicated not only by the diversity of the law from state to state but also by the fact that, unless different provisions have been expressly stated in the will, rules that are in many respects obsolete apply to such questions as: how to apportion the burden of death taxes among the beneficiaries; in which order creditors ought to be paid; what assets are to be used for the payment of debts; which legacies are to be abated in case of insufficiency of the estate to pay them all in full; and what to do when a beneficiary has predeceased the testator. Unless the testator has given special powers to his executor, it may be necessary for the latter to observe cumbersome and expensive formalities in administration. In the United States it is therefore unwise to draft a will without expert legal advice; and it is advisable for a testator to have his will periodically checked by a lawyer in order to keep up not only with the changing circumstances of the testator's family circle and of his property but also to keep abreast of frequent changes in the tax laws in order to avoid unnecessary taxes.

Invalid wills

      A testamentary disposition is not valid if at the time of its execution the testator was mentally incompetent or if he acted under “undue influence”—i.e., coercion—or under fraud. It is difficult, however, to break a will upon such grounds. The courts, especially those of Anglo-American systems, demand strict proof that the testator, when he made the provision, was mentally unable to know what he owned or who were his relatives or was unable to form a reasonable plan for the disposition of his property. The mere fact that the testator laboured under some insane delusion will not affect the validity of his will unless it is proved that this governed the disposition made by him. Coaxing and persuasion are generally not held to constitute undue influence in the absence of actual threats. A testator must not be pushed, but he may be led. Undue influence may be held to exist, however, where a testamentary disposition was brought about by a person upon whom the testator was dependent or whom he was likely to obey blindly.

      The statutory formalities prescribed for the execution of a will must be observed meticulously. An unwitnessed holographic will may fail because the instrument contains a printed letterhead or some other words, figures, or signs in print, a rubber stamp, or another person's handwriting. A witnessed will may fail because a witness signed outside the testator's line of sight or because the witnesses were not told that the instrument was the testator's will or because a blank space was left between the end of the text and the signature of the testator. This strict compliance doctrine has come under increasing scholarly attack, and a few places now permit judges to uphold wills containing formal defects if the proponent of the will can show the defect in question was harmless to the purposes of the will.

      The witnesses are supposed to be absolutely disinterested—i.e., persons who derive no direct or indirect benefit from any of the provisions of the instrument. A witness may be held to be benefitted indirectly if his spouse is appointed in the will as executor and thus given the opportunity to earn the fees of that office. Ordinarily, attestation of a will by such a disqualified witness will not result in the invalidity of the entire instrument but only of the provision from which the witness would have benefitted.

      A will is ambulatory; that is, it is of no effect until the testator's death, and it can be revoked or changed by him at any time. Revocation is effected either by the testator's physically destroying the instrument or by his executing a new testamentary instrument, the provisions of which are incompatible with those of the earlier one or in which it is simply declared that the will is revoked. In many states of the United States a will is also revoked automatically if the testator marries after its execution. Divorce often revokes any provision for the spouse in a preexisting will. In England a will is revoked by marriage unless it is stated to be made in contemplation of marriage. Attempts by contractual promise to limit one's freedom of changing or revoking one's will are without any effect in those legal systems that follow the pattern of the French civil code. But, under the system of the German civil code, a disposition is irrevocable if it is expressed in a hereditary pact (Erbvertrag) made with a beneficiary or even with a third person. In Anglo-American law the will remains revocable even if the testator has promised that he will not revoke it; but if he does, his estate will be treated as if the testator had lived up to his promise. In practical effect, a testator may thus bind himself to make and not to revoke a will favouring a person who has promised to take care of him in old age. A husband and wife may promise each other that upon the death of one of them his property shall be enjoyed by the survivor and that upon the latter's death it will go to the children or to certain relatives or charities.

The machinery of transfer

      Rules of intestate succession and of wills do not by themselves bring about the actual transfer of the decedent's assets to the new owners. A society with an economic system based on credit cannot operate on the once accepted principle that a person's debts die with him. Modern law must provide techniques for making sure that the debts left are properly paid. For the purpose of orderly transfer of assets and the proper payment of the debts of a decedent, two different techniques have been developed—one in the civil law and one in the common law.

Transfer in civil law

      The civil-law technique goes back to ancient Rome. When the head of a house, the paterfamilias, died, his position of headship devolved upon his heir or heirs. The heir, or heres, not only acquired all the ancestor's property but also his duties. The heres became liable (liability) for the debts, which meant that he had to dig into his own pocket if the assets of the estate did not suffice. This harsh rule was mitigated by the possibility given to the heir to abstain from, or to decline, the accession to the heirship. Then the option of accepting or declining devolved upon the person or persons next in line under the will or the rules of intestacy. If all declined, the succession ultimately came to the state, which was never liable beyond the value of the assets of the estate. Refusal to accept heirship to a father could appear as a violation of the duty of filial piety. Also, at the time the choice was to be made it might not always be apparent whether or not the estate was solvent. So another protective device was invented by Justinian: if, within a certain period of time, the heir fully and correctly inventoried the assets of the estate, his liability would be limited to the assets of the estate or to their value.

      The Roman system is still basically that of the civil-law countries. There are, of course, many variations in detail, especially in the treatment of the situation of succession by a plurality of coheirs and in the treatment of the period of uncertainty as to who will ultimately accept the succession. There must be a person or a plurality of persons who, like the Roman heres, succeeds to the universality of the decedent's estate—i.e., to the assets as well as to the debts. He or they, as the case may be, is or are determined by the decedent's testament, or by the law of intestacy, or by a combination of both. By his testament the decedent may charge the universal successor or successors with the duty to carry out legacies—i.e., to hand over certain assets of the estate to third persons, or to pay to them certain amounts of money. Any person called to be universal successor is free to accept or to decline the position. If he chooses to accept, he may limit his liability to the assets of the estate either, as under the French system, by declaring his acceptance to be under the benefit of the inventory and by then making the inventory fully and correctly or, as under the German system, by handing over the estate to a judicially appointed administrator.

Transfer in common law

      The Anglo-American system developed along quite different lines. Until the 19th century, liability for the debts of a decedent was limited to the assets of his personal estate. Real property was not liable unless it had been specifically mortgaged, in which case the mortgagee had his remedy of foreclosure. Thus, the title to the real property descended, like title to all assets under the civil law, directly to the heir, who acquired it immediately upon the death of the ancestor. But in order to guarantee the liability of the personal property for the debts of the decedent, as well as its proper distribution among the plurality of distributees, the ecclesiastical courts (ecclesiastical court), which had the jurisdiction to deal with succession to personal property, worked out an original technique. Title was treated as passing from the decedent to the bishop or, later, to his substitute (surrogate) and ultimately to a middleman, on whom it was incumbent to pay the debts of the decedent and other claims that might exist against the estate and then to distribute the surplus remaining among the persons entitled thereto under the will or under the rules of intestacy. The provisions of a testament, however, would not be considered until the instrument had been admitted to probate, which means that it had been found to be properly executed and valid by the ecclesiastical court.

Probate

      The modern laws of the Anglo-American countries have been developed upon this historical pattern with its peculiar features of probate and administration. In England the jurisdiction of the ecclesiastical courts was continuously narrowed by the royal courts. In the court reform of the 1870s, the new Probate, Divorce and Admiralty Division was established in the High Court (High Court of Justice). It took over from the ecclesiastical courts the narrow jurisdiction left to them, that of scrutinizing instruments purporting to be testaments; but simultaneously its jurisdiction was extended to wills—i.e., instruments purporting to dispose of real property. Administrators are appointed by the Probate Division, but executors derive their powers directly from the will, so that they can act as soon as it is admitted to probate. If the personal representative wishes to obtain authoritative instructions on a problem occurring in the course of the administration, he can turn to the Chancery Division of the High Court. But as a general rule the personal representative is free to act on his own and under his own responsibility, much as does a civil-law heir.

      In the U.S. branch of the common law a somewhat different machinery came into being. Ecclesiastical courts on the English pattern had not existed in the American colonies. The tasks of probate and of appointing administrators had thus to be performed by other agencies. In some places the job was for some time performed by the governor or some other officer of the executive. But the institution that was peculiarly developed in America was the Probate Court, which in most states is called by that name but in New York is known as Surrogate's Court and in Pennsylvania as Orphan's Court.

      The tasks of a U.S. Probate Court are much more extensive than those of its English counterpart. United States Probate Courts usually are concerned with the administration of estates not only of decedents but also of minors and mentally incompetent persons. All of the persons entrusted with these tasks are treated as “officers of the court,” who must all be appointed by the court, must give bond, and will be closely supervised by the court. In contrast to the practice in England, an American executor, or administrator, is not permitted to take any step without previous approval of the Probate Court, which normally requires that all interested parties be formally notified. Strictly speaking, no piece of furniture may be sold, no claim be settled, without the consent of the court.

      If, as it is frequently done, the strict rules are not meticulously followed, troublesome complications may arise. In any case, time is needed and expenses have to be incurred. Devices have therefore been developed enabling the parties to dispense with administration or to avoid both probate and administration by resorting to transactions inter vivos that permit a person to give away his property while he is alive but under conditions allowing him to retain for himself not only the income and enjoyment during his lifetime but also the power of management, disposition, and revocation. Through such devices as revocable inter vivos trusts (trust), joint tenancies, or “tentative trusts” of bank accounts (so-called Totten trusts), one can achieve the practical effects of a will without probate and without administration. One can also to some extent escape those safeguards that have been established for the protection of creditors and forced heirs and for the prevention of tax avoidance. While both the English and the civil-law systems maintain the principle that it is not possible to give and to keep, the ingenuity of U.S. lawyers and the indulgence of U.S. judges often have made it possible for an owner to “eat his cake and have it too.” Reform legislation in a great many U.S. states has made administration simpler and speedier, especially for small estates.

Administration

      The Uniform Probate Code published by the National Conference of Commissioners on Uniform State Laws (1969) provides a choice among several systems of administration: simple and inexpensive ones for simple cases, and administration supervised by the court and containing elaborate safeguards for estates that are insolvent or under dispute or that present other difficulties. The scheme of the new code thus assimilates the U.S. law of winding up decedents' estates into those of England and of the civil-law countries, where the simple estate is treated as the normal, where no executor is needed unless he is expressly provided for in the testament, and where judicial administration is limited to cases of exceptional risk or complexity.

      Under both the English and the American systems, the winding up of an estate follows essentially the same pattern. Anything looking like a will is filed with the Probate Court. The person named executor by the will, or some other interested person, petitions for the admission of the instrument to probate. The procedure varies in detail but, following English tradition, generally provides the possibility of simple, quick proceedings.

      A testator may choose as executor any person or any corporation engaging in the business of administering trusts and estates. But the law seeks to have the position of administrator filled by that person likely to be the one primarily interested in the estate. The statutes thus contain lists of the persons who have a right to be appointed. The first place is usually given to the surviving spouse, followed by relatives in the order in which they are intestate takers. If there is no surviving spouse or relative, the right to administer devolves to the creditors of the decedent and, in the last line, to a public officer.

      Under the laws that prevailed in the United States into the mid-20th century, real property and personal property were not handled in the same way. Unless a testator disposed otherwise, the payment of claims was from the personal estate. The real estate was not to be touched until the personal estate had been exhausted. Accordingly, title to only the personal estate passed to the executor or administrator. Title to the real estate descended directly from the decedent to the heir or heirs, or to the devisee or devisees named in the will. If the personal estate was insufficient to pay all the claims, the executor or administrator would be authorized by the Probate Court to sell or mortgage as much of the real estate as was necessary. In many, although not all, U.S. jurisdictions this different treatment of real estate and personal estate has been abolished, making both liable for claims on an equal footing and equally subject to administration.

      Under the English system an executor derives his position directly from the will; under the U.S. system an executor, like an administrator, must be appointed by the Probate Court, and no appointment will be made if the person is found to be disqualified or until he has taken the oath of office and posted bond.

      An executor or administrator has to collect the assets of the estate, ascertain and pay the taxes and debts, and distribute the surplus to the legatees or intestate takers. In the civil-law system proper performance of these functions has its sanction in the personal liability of the heir for the debts of the decedent; if he takes steps to free himself of this liability, he has then to manage the estate like a common-law administrator or to hand it over to an administrator appointed by the court.

      The office of executor or administrator may involve complex responsibilities. Unless one can be certain that there are no unknown debts, that the estate is solvent, that there will be no dispute about the distribution of the estate, that there are none but the simplest tax problems, and that there are no minors or mentally incompetent persons among the possible takers, one should not act as executor or administrator without the assistance of a lawyer.

Additional Reading

The historical background of modern laws of inheritance

Max Kaser, Roman Private Law, 3rd ed. (1980; originally published in German, 10th ed., 1977); W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd ed. rev. by Peter Stein (1963, reprinted 1975); Rudolf Hübner, History of Germanic Private Law (1918, reprinted 1968; originally published in German, 2nd ed., 1913); Frederick Pollock and Frederick W. Maitland, History of English Law Before the Time of Edward I, vol. 2, 2nd ed. (1959, reissued 1968); and Sir William Holdsworth, History of English Law, 7th rev. ed. by A.L. Goodhart and H.G. Hanbury, 17 vol. (1956–72).

Discussions and critiques of inheritance

John Stuart Mill, Principles of Political Economy, vol. 1 (1848), available also in many later editions; Lujo Brentano, Alte und neue Feudalität: Gesammelte Aufsätze zur Erbrechtspolitik, 2nd ed. (1924); Josiah Wedgwood, The Economics of Inheritance (1929, reprinted 1971); Sir Josiah Stamp, Some Economic Factors in Modern Life (1929); Friedrich Engels, The Origin of the Family, Private Property and the State (1942; originally published in German, 1884); and Karl Renner, The Institutions of Private Law and Their Social Functions (1949, reissued 1976; originally published in German, 1929). Marvin B. Sussman, Judith N. Cates, and David T. Smith, The Family and Inheritance (1970), is a case study culminating in conclusions about testamentary patterns, practices, and effects of inheritance in American society.

The current law of inheritance

Monographic treatises on contemporary inheritance laws are collected in Murad Ferid and Karl Firsching (eds.), Internationales Erbrecht (1955– ), a multivolume publication, loose-leaf for updates and additions, covering, among others, Argentina, Australia, Belgium, Bulgaria, China, Denmark, Finland, France, Germany, Greece, Great Britain, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, New Zealand, The Netherlands, Austria, Poland, Sweden, Switzerland, Spain, South Africa, Turkey, Hungary, the United States, and Vatican City. Concise digests of the succession laws of all jurisdictions of the United States, Canada, the United Kingdom, and many other countries are published annually in Martindale-Hubbell Law Directory. For the United States, see William Herbert Page, Page on the Law of Wills, rev. ed. by William J. Bowe and Douglas H. Parker, 8 vol. in 9 (1960–65), kept up-to-date by annual supplements; and Max Rheinstein and Mary Ann Glendon, Law of Decedents' Estates (1971), an introduction. For England, see H.S. Theobald, Theobald on Wills, 13th ed. by Stephen Cretney and Gerald Dworkin (1971); D.H. Parry, Parry and Clark on the Law of Succession, 8th ed. by J.B. Clark (1983); W.J. Williams, Williams' Law Relating to Wills, 5th ed. by C.H. Sherrin, R.F.D. Barlow, and R.A. Wallington, 2 vol. (1980); and Williams, Mortimer, and Sunnucks on Executors, Administrators, and Probate: Being the 16th Ed. of Williams on Executors and the 4th Ed. of Mortimer on Probate, by J.H.G. Sunnucks, J.G. Ross Martyn, and K.M. Garnett (1982). For Scotland, see David M. Walker, Principles of Scottish Private Law, 3rd ed., 4 vol. (1982–83).Max Rheinstein Mary Ann Glendon

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