Some Historical Perspective
“Dying people have been allowed to allocate their property among family and friends since the beginning of written records. Ancient societies surrounded such transfers with rules and rituals that protected the dying person from the avarice of his relatives, from fraud, and from his own incompetence. These customs in time became law and have been the source of the law of testamentary freedom and of its limitations. …
“The bible furnishes evidence of Jewish laws on intestate succession to property1 and of the common practice of doubling an anticipated inheritance through life-time gift.2 There is no evidence for a general Jewish law or custom permitting persons to direct the transfer of their assets to anyone other than their intestate successors or to change the portion each was to receive by law.
“The primary antecedent for the law of wills was Roman statutes and customs. According to Roman law, a free man could transfer up to three-fourths of his assets at death by executing an oral or written transfer of assets prior to death, which was enforceable by the Praetorium3 after death. This act was called a testamentum (testament).4 The testament had to be performed before at least seven witnesses who could testify after the maker’s death as to the validity of the transfer.5 The person making a testament appointed a person called the haeres (heir) to make distribution of his goods and land according to his wishes. Normally, the heir would be the testator’s eldest son, unless he was specifically disinherited.6 If the eldest son was disinherited, the testator’s remaining children, if any, were his joint heirs.7 No particular form of words was required to appoint an heir.8 After the testator died, the attesting witnesses appeared before the Praetor and proved (probated) the will. The Praetor then confirmed the heir.9 The heir was entitled to have an inventory of the Decedent’s assets and liabilities drawn up and filed with the Praetor. Once an inventory had been filed, the Decedent’s creditors and legatees (beneficiaries) were limited to satisfying debts and legacies (gifts) from the estate and could not pursue the heir for satisfaction of either.10 If the Decedent failed to make a valid testament, his or her assets would be administered by the eldest son or next closest relative under the intestacy laws.11 When the heir had completed distribution of the Decedent’s estate, he reported to the Praetor that distribution was complete. This remarkably modern system of estate administration was adopted with slight modifications by civil authorities and by the Roman Catholic Church throughout Western Europe after the fall of the Western Empire.”
From Eunice L. Ross & Thomas J. Reed, Will Contests 2d, pages 2-1 to 2-3 (1999).
- Numbers 27:7-11 contains the Mosaic law of inheritance. There are some limitations, however, that the Hebrews recognized an inter-vivos transfer of property to one who would not take the larger portion at death. See, eg, the story of Esau and Jacob, Gen. 25:27-33, 27:1-44.
- See, eg, Jacob’s giving a double portion to Joseph, Gen. 48:22.
- The office of the Praetor (governor) of a Roman province. The Praetor was assisted by a staff like that of a present day government. The personnel of the Praetorium handled specific areas like the treasury, the military, interprovencial relations, and public games and gatherings.
- The Roman testamentum consisted of a public declaration by any person that he was appointing a relative (usually his son) as his haeres, to distribute his assets at death. Various formalities were required to ensure the authority of the haeres to act as distributor of assets at death. The Roman law provided for a definite line of succession to movable and immovable property at death and for payment of debts of the Decedent by the haeres out of the Decedent’s assets before distribution to those entitled to receive assets by law. See, eg, Gaius, Institutes 101-04 9 in 1 Scott, Civil Law 124 (1932).
- Justinian’s Code Book VI Tit. 22(8) in Scott, Civil Law 326-27 (Emperor Justinian to Demosthenes, Praetorian Prefect).
- Gaius, Institutes 117, 119 in 1 Scott, Civil Law 26-27.
- Gaius at page 123, 127 at 1 Scott, 127-28.
- Gaius at page 124 at 1 Scott 127.
- Gaius at page 124 at 1 Scott 127.
- Justinian’s Code Book VI Tit. 23(22) (Emperor Justinian to the Senate) in 1 Scott, Civil Law 16-17.
- Gaius, Institutes 123 in 1 Scott, Civil Law 127.
The foregoing describes how things were handled over 2000 years ago. What has changed since?
- Women can now own and dispose of property at death.
- The amount of one’s property that may be disposed of at death has increased from three-quarters to all.
- Oral testamentary transfers have been all but eliminated in Washington and the majority of states.
- The Praetorium has become the Superior Court.
- The Praetor has become the Judge.
- The testament has become the Will.
- The number of attesting witnesses has been reduced from 7 to 2.
- The haeres has become the Personal Representative.
- The priority order for haeres has gone from eldest son to surviving spouse then children.
- Upon completion of administration, the haeres no longer is required to appear in person before the Praetor but, at least with a Washington Nonintervention estate, may simply file a Declaration of Completion of Probate with the Court.
Ten changes in over 2000 years. In this time of information technology and change at the speed of light, prepare yourself for a process that has been going on by and large the same way since before the time of Christ.