Types of heirs

A man’s heirs par excellence were his intrinsic or family heirs (heredes sui) - those persons, male or female, who would be under the power of the father (paterfamilias) if he were still alive.

The praetor could allow family heirs to escape an insolvent inheritance and all kinds of hereditary liabilities by keeping their hands off the hereditary estate (ius abstinendi). In such cases, the inheritance was sold in the name of the deceased and not in the name of the heirs. In spite of their abstention, however, family heirs technically remained heirs. In the case of an insolvent inheritance, the praetor could also restrict the liability of the slave manu­mitted and appointed necessary heir by will, to the limit of whatever the slave had received or might later receive from the estate - thus shielding any property the slave had acquired from other sources.

All other heirs who were not family heirs were called extraneous or external heirs (extranei heredes) because they usually were not members of the testator’s household.

Finally, in accordance with the kind of succession at issue, an heir could be testamentary, intestate, or compulsory. Testamentary heirs were those who inherited by testamentary appointment; intestate heirs were entitled by law to inherit from the estate of someone who had failed to leave a valid will; and compulsory heirs were those who were entitled by the law to inherit against a will that did not benefit them.

Hereditas iacens

If a person had neither family heirs nor necessary heirs, there would be an interval between the decedent’s death and the entry of the external heir. During this period, of course, the estate could not simply be static: slaves belonging to the estate continued their activities, animals had to be fed, and so on. For this reason, Roman jurists considered this period of the estate a legal entity in its own right, as a sort of personification of the inheritance.

During this period of hereditas iacens, things to be inherited were con­sidered res nullius (nobody’s property). Thus, theft of the physical objects of an estate was technically not possible, and a special usucaption called usuca­pio pro herede was allowed under early civil law, accelerating the process of acceptance of the inheritance and forcing heirs to make their decision (Gaius 2.52). According to this special usucaption, both movable and immovable objects of an estate could be acquired within one year by the usucaptor, even without title or good faith. This practice was ultimately forbidden by a senatorial resolution in Hadrian’s era.

Bonorum possessio

To correct the old civil law of succession on several points and to protect it with new remedies, the praetor established a parallel system of succession called bonorum possessio, or an authorization by the praetor to take posses­sion of the property of the deceased. Although the praetor could not appoint a civil heir (Gaius 3.32: praetor heredes facere non potest), the position of the possessor of the estate was very similar to that of the civil heir.

The praetor granted the possession of the deceased person’s estate to clai­mants who were not necessarily civil heirs, and in a different order from that dictated by civil law. Indeed, sometimes possession of the estate was granted to someone who was also civil heir, so that he could enjoy praetorian reme­dies, and sometimes possession was granted in disregard of a civil law claim. Possession granted by the praetor provided a valid title for usucaption.

The grant of the bonorum possessio could be fully effective and permanent (cum re), or partially effective and temporary (sine re).

The possession of the estate could be granted by the praetor upon intestacy (sine tabulis), i.e., when there was no will; in accordance with the will, i.e., to the heir appointed in a testament (secundum tabulas); or despite the will (contra tabulas), i.e., to a different person than the one appointed in the testament. The details of each case will be explained below.