What is the difference between a testate and an intestate inheritance?

What is probate inheritance and how does it work?

A testamentary inheritance occurs when the deceased has left a valid will, expressing how they wish their assets to be distributed after their death. This document is essential to avoid family disputes and speed up inheritance procedures, allowing the process to take place in an orderly manner and in accordance with the testator’s wishes.

In Spain, although the testator is free to distribute their assets as they wish, they must respect the legal minimum, which is the part of the inheritance that the law obligatorily reserves for certain heirs (descendants, ascendants and spouse). Within these limits, they can decide how to allocate the rest of their assets, whether it be to specific family members, friends or even charities.

 Types of will in Spain

In Spain, there are several ways to make a will, and each one has its particularities and levels of legal certainty:

• Open will: This is the most common. It is granted before a notary, who drafts it according to the will of the testator and registers it in the General Registry of Last Wills and Testaments. It is the safest option, as the risk of errors or challenges is minimized.
  
  

• Sealed will: The testator writes it themselves or with the help of a third party and gives it to the notary in a sealed envelope, without the notary knowing its contents. It will be opened and validated after the testator’s death.
  
  

• Holographic will: It is written and signed in the testator’s own handwriting without the intervention of a notary. In order for it to be valid, it must meet specific requirements and be validated by a court after the death of the testator, which can make the process more complicated.
  
  

Each modality has advantages and disadvantages, but if what is sought is legal certainty and speed of processing, the open notarial will is the best option.

Advantages of making a will

A will is not only an act of foresight, but also provides multiple benefits for both the testator and their heirs:

• It avoids family conflicts, as it makes the inheritance arrangements clear.
  
  
• It ensures that the deceased’s wishes are carried out, respecting their decisions on the distribution of their assets.
  
  
• It facilitates and streamlines the inheritance process, reducing costs and unnecessary paperwork.
  
  
• It allows for the inclusion of specific bequests or donations, such as benefitting friends, charities or entities that would not be legal heirs in the event of intestate succession.
  
  
• It protects certain heirs, ensuring that the spouse or other family members receive a fair share.
  
  

What happens when there is no will? Intestate inheritance

If a person dies without having made a will, their inheritance is considered intestate or “ab intestato”, which means that the law determines who their heirs will be and in what proportion they will receive the assets.

In this case, the relatives of the deceased must initiate a legal procedure to be recognized as legitimate heirs, which usually involves more paperwork, costs and waiting times. If there are disagreements between the potential heirs, the process can become even more complex, even reaching the courts.

The main drawback of intestate succession is that the deceased has no control over the fate of their assets, as the law establishes a strict order of succession. Furthermore, in some cases, the widowed spouse or certain close relatives may not receive the part of the estate that the deceased would have wanted to assign to them.

Order of succession in intestate inheritance

The law establishes an order of priority in intestate inheritance:

• Descendants: If there are children, they inherit in equal parts. If one has died before, their part is passed on to their descendants (grandchildren).
  
  

• Ascendants: If there are no children or grandchildren, the parents inherit and, in their absence, the grandparents.
  
  

• Widowed spouse: Their right depends on the existence of descendants or ascendants.
  
  

• Brothers and nephews: If there is no spouse or ascendants, the inheritance is distributed among the brothers and, failing that, the nephews.
  
  

• Other collateral relatives: If there are no heirs in the previous categories, the inheritance passes to uncles, cousins or other relatives.
  
  

• The State: As a last resort, if there are no legitimate heirs, the inheritance is awarded to the State.
  
  

Disadvantages of intestate inheritance

Choosing intestate succession, whether through ignorance or lack of foresight, can lead to multiple disadvantages:

• Family conflicts, as the heirs may not agree with the distribution imposed by law.
  
  
• Longer and more expensive inheritance processes, as they require the declaration of heirs and possible litigation.
  
  
• Lack of control over the inheritance, as the deceased does not decide how their assets are distributed.
  
  
• Less protection for the surviving spouse, who only receives a portion determined by law, with no possibility of improvement.