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Advanced Introduction to Private Law

Jan M. Smits

In this Advanced Introduction, one of the world's leading private law scholars takes the reader on an intellectual journey through the different facets and dimensions of the field, from the family home to Kuta Beach and from Thomas Piketty to Nina Hagen.
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Succession law

Jan M. Smits

Extract

as an instrument of social reform could be a highly effective remedy, but in reality states are highly reluctant to do so. Germany and Italy even give constitutional status to an individual’s right to inherit. The closest states get to confiscation is to levy taxes on the value of the property owned by a deceased person. Succession taxes (opponents say ‘death tax’) at the top rate vary greatly from 55 per cent in Japan to much lower percentages elsewhere. The average top rate in OECD countries is 15 per cent, certainly not enough to tackle Piketty’s problem of ‘patrimonial capitalism’ effectively. But to propose a progressive tax reaching, for example, 100 per cent for inheritances over €1 million will indeed be a sure way for politicians not to get re-elected.

The current law of succession forms a combination of the other two options. It not only allows a person to dispose of his property (so-called testate succession) but also provides default rules for cases in which he does not (intestate succession). Such a mixture of facilitative default rules and the freedom of parties to set these aside was encountered before in this book. The special thing about succession law, however, is that many jurisdictions severely limit this freedom of testation for the sake of protecting family members. The freedom to transfer property inter vivos (by way of sale or gift) is usually much greater than that afforded to the disposal of one’s assets mortis causa. One question to...

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