Acceptance of the Inheritance

After the death of the testator, the vesting of the inheritance depended upon the category of the heir; that is, whether he was a heres necessarius or a heres voluntarius.

The heredes necessarii comprised of the sui heredes and the testator’s own slaves inherited immediately at the falling open of the inheritance (delatio hereditatis),^[1121] irrespective of whether they wished to do so or not and whether the estate devolved in accordance with the rules of testate or intestate succes­sion.^[1122] The praetor later realised that this might produce injustice in some cases and thus granted sui heredes the right to abstain from the inheritance (ius abstinendi).

Heirs who fell outside the category of sui heredes were referred to as heredes extranei or voluntarii. By contrast with the former, such heirs could accept or decline the inheritance as they saw fit since in their case succession did not follow as a matter of course. The acceptance of the inheritance (aditio hereditatis) could only occur after the falling open of the estate (delatio hereditatis).^[1124] Originally such acceptance had to be expressed by means of a formal oral declaration (cretio), but later it could be established informally by simply acting as an heir (pro herede gestio).^{size=2 color=black face="Times New Roman">[1125]} Under the law of Justinian, any expression of the prospective heir's desire to inherit was sufficient.

During the period between the testator's death and the acceptance of the inheritance, the estate was construed as a hereditas iacens, i.e. an estate without a lawful owner or an entity that belonged to no one (res nullius). Although the assets and liabilities of the estate continued to exist, the creditors had no one to claim from and the position of substitute and intestate heirs remained uncertain.^[1126] To prevent an endless delay of acceptance, it was recognized that any person (including the creditors) could assume possession of the estate and utilize a special form of prescription (usucapio pro herede) to become the persons right­fully entitled to it.^[1127]

5.5.2