Transfer of Property on Death and Creditor Protection: The Meaning and Role of 'Universal Succession'

Abstract

Although “universal succession” is generally regarded as a key concept of succession law, in comparative legal writing it is used in at least two different meanings and thus a frequent source for misunderstandings. According to the first meaning, “universal succession” is a hallmark of legal regimes which follow the Roman tradition and characterises the transfer of the deceased’s assets and liabilities to the “heir(s)” without any process to wind up the estate. Systems of “universal succession” are thus thought to contrast fundamentally with the English legal tradition, under which the estate passes to a “personal representative”, who discharges the outstanding obligations of the deceased before distributing any residue among the beneficiaries. According to the second understanding, “universal succession” refers to the transfer of a “patrimony”, i.e. of a totality of assets and liabilities, regardless of the question of beneficial entitlement. If understood in this sense, “universal succession” characterises not only the position of the Civilian heir, but equally that of the personal representative under English law, because it is upon him that the deceased’s estate devolves. The present article shows why this second understanding of “universal succession” allows for much more fruitful comparisons than the first. In particular, it helps to understand how creditors’ interests are protected in different succession laws, an aspect that is often neglected legal writing, but that has distinctly shaped the modern regimes.

Note: This contribution is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Avizandum.

Keywords: comparative succession law, universal succession, creditor protection, patrimony, administration of estates