After accepting inheritance, the heirs receive all the property of the deceased, together with all the rights and duties related, except rights and duties tied to the deceased personally. This means, Wolff notes, that the heirs must use the assets inherited to pay all the debts of the deceased, but if these are not enough to cover the debts, the heirs are not obligated to add anything from their other assets. Still, the heirs are obligated to make in front of witnesses a precise inventory of all the assets of the deceased, in order to show all the debtors how much they can expect to get.
Who then gets to be an heir? An obvious choice, Wolff states, are the children of dead parents, both legitimate and illegitimate. In this case, the inheritance is to be divided up among the children, except if some, but not all of them have already reached adulthood, in which case the minors should get a larger share, in order to sustain their education. The same principle applies, Wolff thinks, with grandparents with no living children, but with living grandchildren, because everyone has an obligation to take care of any of their descendants in a direct line.
If a person dies childless, the next best thing is then to make the parents the heirs, since a child should take care of their parents also. On the other hand, Wolff underlines, there is no special obligation to transfer property to relatives not in the direct line of the deceased, such as siblings or cousins, although in practice one often does feel the need to leave something to them after one’s death.
The right of a child to inherit their parents and the right of a parent to inherit their childless children are based on the natural law, Wolff insists, and therefore inalienable in principle. He does admit the possibility of disinheriting such natural heirs, if the would-be-heirs have lived an immoral life or have acted against their duties toward the deceased person.
Wolff notes that a person may create a testament, that is, an express declaration concerning the transfer of the ownership of their property after their death. Such a testament, he adds, might also contain statements of other things to be done after the testator’s death, say, about the burial of their body. The suggested transfer of property needs to be accepted by the declared heirs only after the death of the testator, Wolff points out, so that they need not be informed about the content of the testament before this happens. Obviously, although a testament has already been made, the testator can always make a new one replacing the older versions.
Testaments are clearly allowed, if the testator has no natural heirs or if these have been disinherited, but what if the testator has e.g. children who are not disinherited? Wolff states that if parents can help others in their needs without neglecting their children, they are allowed to do so by the natural law. Thus, a testator can make provision even for people other than natural heirs in their testament. Wolff especially mentions legacies, that is, specific items or fixed sums of money, dedicated to certain persons in the testament.
According to Wolff, in addition to recounting who should inherit the property, the testator should also include in the testament an indication if some natural heir is to be disinherited. Furthermore, he adds, the testament should state the reason why someone has been disinherited, so that the disinherited person can, if they want, contest the validity of the reason. Even if the reason holds, the heirs can admit a right to the inheritance even to the disinherited person, but the testament remains in this case otherwise valid.
Even if a natural heir has not been mentioned in the testament – say, if they have been born after the testament has been made – Wolff thinks that they should be admitted to the inheritance along with other heirs. Otherwise, the testament remains valid, except if the funds of the deceased are then insufficient e.g. to account for all the appointed legacies.
What should the testament be like? Wolff states that any form is acceptable, as long as it can be established that it has been the will of the deceased. Thus, the testator can just declare their will in the presence of witnesses, but they can also write a document or sign one written by someone else. If a written document is used and it contains signatures of witnesses, these witnesses need not know the specific content of the testament, just that it has been the will of the testator.
If a person dies intestate – that is, without having made a testament – Wolff advises not presuming that the person would have wanted their assets to remain ownerless. Thus, he argues, we must presume what the will of the deceased was, working, as it were, on the basis of a tacit testament. Of course, the first available option is to give the inheritance to the children of the deceased or their descendants, and if such do not exist, to the parents of the deceased or their ancestors. If there is no heir in the direct line, Wolff continues, more and more remote relatives are to be tried. If all else fails, he concludes, at least in the state of nature the inheritance should go to anyone taking the assets into their possession.
Like with any contract, Wolff states, testaments may include all kinds of conditions for the receiving of inheritance or legacy. He points out that when waiting for the condition to fulfill, other heirs may use the assets in question, and if it is certain that the condition will never be fulfilled, all the inheritance should go to the other heirs. Wolff also notes some possible conditions of inheritance in a testament:
- A parent may appoint a successor to an underage or mentally insane child, so that if the child dies before reaching adulthood or being cured, the inheritance meant for the child goes to the successor
- The testator may bequest what Wolff calls fideicommissum, where the inherited property or a part of it is to be eventually returned to another person (e.g. to someone within the family of the testator).
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