Bloke I. Article II
Introduction to Spanish Succession Law
Have you ever wondered what will happen to your assets when you pass away? This question, which many prefer to avoid, is essential to ensure that your estate is according to your wishes. In Spain, succession law is governed by the Civil Code, which establishes two main modalities: testate succession and intestate succession.
The Spanish succession system seeks to balance the will of the deceased with the protection of certain family members, creating a legal framework that, although complex, offers security and predictability. However, the differences between having a will and not having one are substantial and can determine the financial future of our loved ones.
Regulatory Framework of the Civil Code
Royal Decree of 24 July 1889, which enacted the Spanish Civil Code, remains the fundamental rule governing successions in our country. Articles 657 and following lay down the foundations of succession law, defining key concepts such as inheritance, heirs and legatees.
Article 657 of the Civil Code states that “succession rights are transmitted from the moment of a person’s death,” marking the start of the succession process. This fundamental provision determines that death is the exact moment at which the hereditary transmission takes place, regardless of whether or not a will exists.
The Importance of Succession Planning
Succession planning is not just a legal matter but a tool for family protection. Like insurance that we hope never to need yet becomes essential when the time comes, a will provides peace of mind to both the testator and the heirs. Without such planning, the law will determine who inherits what, without taking the particular circumstances of each family into account.
Legal Foundations of Succession in Spain
Article 658 of the Civil Code: The Legal Cornerstone
Article 658 of the Civil Code constitutes the cornerstone of the Spanish succession system. It clearly establishes that “succession is conferred by the will of a person expressed in a will and, in the absence thereof, by operation of law.”
This legal provision recognises two fundamental succession modalities: the first, known as testate succession, respects the will of the deceased expressed in a will; the second, called legitimate (intestate) succession, operates when there is no will or when it is insufficient. The article also contemplates the possibility that both modalities coexist, each applying partially depending on the circumstances.
Types of Succession Recognised by Law
The Spanish legal system therefore recognises two main types of succession that operate subsidiarily to each other.
Testate Succession
Testate succession occurs when the deceased has expressed his or her will through a valid will. This document allows the testator to decide how to distribute assets while respecting legal limitations such as the forced share (legítima) of compulsory heirs.
A will may be of different types: open (the most common), closed or holographic. Each modality has its own formal requirements, but all share the objective of recording the testator’s wishes unequivocally.
Intestate or Legitimate Succession
Intestate succession operates when there is no will or when the will is null, insufficient or ineffective. In these cases, the law establishes an order of priority among potential heirs, beginning with descendants and continuing with ascendants, spouse, siblings and collateral relatives up to the fourth degree.
Testate Succession: When There Is a Will
Definition and Characteristics
Testate succession is characterised by respecting the will of the deceased as expressed in the will, within the limits established by law. This type of succession gives the testator significant control over the fate of his or her estate, allowing distribution to be tailored to the specific circumstances of the family.
A will not only regulates patrimonial aspects but may also include provisions on guardianship of minors, acknowledgement of children or even instructions for the funeral. This flexibility makes the will an integral personal-planning tool.
Advantages of Making a Will
The advantages of making a will are multiple and significant for both the testator and the heirs:
Control over Asset Distribution
The will allows the deceased to decide which assets correspond to each heir, always respecting the forced share. This decision-making capacity is especially valuable in families with particular circumstances, such as children with disabilities, family businesses or second marriages.
In addition, the testator may establish specific legacies, naming legatees for particular assets, enabling a more personalised distribution in accordance with the wishes of the deceased.
Speedier Procedures
Succession procedures with a will are notably faster than without one. Whereas a testate inheritance can be settled in 2–4 months, intestate succession can take 6–12 months or longer.
This time difference is due to the fact that a will eliminates the need for a declaration of heirs, an additional procedure that requires time and specific documentation to prove kinship and succession rights.
Lower Economic Costs
Paradoxically, making a will is cheaper than not doing so. The cost of executing a will ranges between €40–€80, whereas processing an intestate succession entails significantly higher expenses due to the need for a declaration of heirs.
Evolution of the Number of Wills Executed in Spain between 2018 and 2024 (projected data for 2024)
Intestate Succession: When There Is No Will
What Happens without a Will
When a person dies without having made a will, intestate succession—also called legitimate succession or ab intestato—is opened. In such cases, the law determines who the heirs are and in what proportion they inherit, without considering the deceased’s personal preferences.
Intestate succession does not mean that the assets are ownerless; rather, distribution is carried out according to the order established by the Civil Code. This legal system seeks to favour the closest relatives, presuming that they would have been the beneficiaries chosen by the deceased.
Legal Order of Succession
The intestate succession order follows a criterion of family proximity, establishing mutually exclusive groups that are called successively.
Descendants as Priority Heirs
Descendants (children, grandchildren, great-grandchildren) occupy first place in the order of succession. They inherit in their own right and in equal shares, with the right of representation applying when a descendant has predeceased.
If the deceased leaves a surviving spouse, the latter retains the usufruct of one third of the estate, while the descendants receive ownership of all the assets.
The Role of the Surviving Spouse
The surviving spouse occupies a particular position in the succession system. He or she inherits full ownership only when there are neither descendants nor ascendants. Otherwise, the spouse’s right is limited to a usufruct over part of the estate.
This situation can be problematic, especially in childless marriages where the surviving spouse must compete with the deceased’s parents for inheritance rights.
Other Relatives and the State
In the absence of descendants, ascendants and spouse, siblings and nephews/nieces inherit, followed by collateral relatives up to the fourth degree. Finally, if no relatives exist within these degrees, the estate passes to the State.
Comparative Analysis: Will vs No Will
Main Differences
The differences between the two types of succession are substantial and affect multiple aspects of the inheritance process.
Comparative between Succession with a Will and Succession without a Will in Spain
Impact on Heirs
The impact on heirs varies considerably depending on whether or not there is a will.
Time Required for Processing
Time differences are among the most significant aspects. While an inheritance with a will can be settled within a few months, intestate succession requires additional procedures that considerably lengthen the process.
This delay not only causes anxiety among heirs but can affect the management of inherited assets, especially in the case of family businesses or properties requiring maintenance.
Associated Costs
The costs of intestate succession are significantly higher. In addition to the cost of the declaration of heirs, extra expenses may arise for documentation, certificates and, in complex cases, judicial proceedings.
Current Statistics on Wills in Spain
Evolution of the Number of Wills
Statistical data reveal sustained growth in the number of wills executed in Spain. In 2023, 727,536 wills were executed, a figure that represents a significant increase compared with earlier years.
This upward trend is explained by several factors: greater public awareness, an ageing population and, paradoxically, the impact of the COVID-19 pandemic, which raised society’s awareness of the importance of succession planning.
Profile of Spanish Testators
The profile of the Spanish testator has evolved in recent years. Although persons over 80 traditionally executed the most wills, the largest concentration is now found among those aged 60 and over.
By gender, women account for roughly 62% of those who execute a will, and by marital status, single persons (48%) slightly outnumber married ones (30%).
Real-World Cases and Practical Consequences
Problematic Scenarios without a Will
The absence of a will can create situations that go beyond the simple application of the legal order of succession.
A paradigmatic case is that of a childless couple whose parents are still alive. In this situation, the surviving spouse is entitled only to the usufruct of half of the estate, while the deceased’s parents inherit the bare ownership. This can generate family tensions and practical difficulties for the surviving spouse.
Frequent Family Conflicts
Intestate succession significantly increases the likelihood of family conflicts. The rigidity of the legal system cannot adapt to the particular circumstances of each family, leading to situations that may seem unfair.
The Spouse in a Vulnerable Position
One of the most problematic cases is that of a surviving spouse who, without a will, may find him- or herself in a vulnerable financial position, especially in second marriages or where one spouse had a significantly larger estate.
Complex Inheritances
Estates that include family businesses, properties in multiple locations or digital assets require specific planning that can only be achieved through a will.
Practical Recommendations for Citizens
When Making a Will Is Essential
There are situations in which executing a will is not merely advisable but virtually essential:
- Childless marriages wishing to benefit the surviving spouse
- Second marriages with children from previous relationships
- Existence of family businesses
- Presence of children with disabilities
- Desire to make specific legacies or charitable donations
Steps to Execute a Will
The process of executing a will is simpler than many believe. It is now even possible to prepare the will online through the Citizen’s Notarial Portal, although signing must still take place in person before a notary.
The basic steps are: gather the necessary documentation, decide on the content of the will, visit the notary for execution and, afterwards, inform the heirs of its existence without necessarily revealing its contents.
Conclusion
The difference between having and not having a will goes beyond legal considerations to become an issue of family responsibility and personal planning. While a will offers control, speed and lower costs in succession procedures, intestate succession subjects heirs to a longer, costlier and potentially conflict-ridden process.
Statistics show that more and more Spaniards understand the importance of this planning, yet there is still considerable room for improvement. In a society where family structures are increasingly diverse and complex, the will becomes an essential tool for protecting loved ones and ensuring that our wishes are fulfilled after death.
The choice between a will and intestate succession should not be made by omission but as a conscious and informed decision. As we have seen, the advantages of a will far outweigh its drawbacks, making its execution a minimal investment with maximum benefits for the future of our families.
Frequently Asked Questions (FAQs)
1. Is it compulsory to make a will in Spain?
No. Making a will is not compulsory in Spain. However, if no will is executed, the estate will be distributed according to the order set by law in intestate succession, which may not coincide with the deceased’s wishes. The law provides a supplementary system that protects close relatives but lacks the flexibility a will offers.
2. How much does it cost to make a will and how much does it cost to process an intestate inheritance?
Executing a will before a notary costs between €40 and €80, whereas processing an intestate inheritance is much more expensive owing to the need for a declaration of heirs, the cost of which can be several times the price of the original will. In addition, intestate proceedings require more documentation and extra steps.
3. Can the surviving spouse be left without an inheritance if there is no will?
Yes, this is possible. In intestate succession, the surviving spouse does not always inherit all the assets. If there are descendants, the spouse is entitled only to a life interest (usufruct) over one third of the estate. If ascendants are alive but no descendants exist, the spouse must share the inheritance with the deceased’s parents. The spouse inherits everything only when there are no descendants, ascendants or siblings.
4. What happens if a will appears after intestate succession has been processed?
If a valid will appears after intestate succession has been processed, the will prevails over the distribution already made. The testate heirs are entitled to claim the assets corresponding to them, which may oblige the intestate heirs to return what they received unduly. This can lead to complex legal and financial problems.
5. Can a will be amended once executed?
Yes. A will can be amended as many times as the testator wishes while retaining mental capacity. The most recent will automatically revokes previous ones. This flexibility allows testamentary provisions to be adapted to changes in the testator’s family, financial or personal circumstances throughout life.
Next article. Block I. Article III