Brits and other foreigners who own property in Spain are frequently urged to make a will – but what actually happens if someone dies without one?

Speaking to El Correo de Andalucia, a Spanish inheritance law expert has warned that it can make the process longer and more prone to disputes between relatives, while describing making a will as both the ‘cheapest’ and ‘most practical’ option.

Dario Garcia Acal, a partner at MDG Fincas | Juridico and specialist in inheritance law, said a will provides a way of setting out a person’s wishes in advance and reducing the potential for conflict after their death.

‘It is important to always do it because it is a way of leaving everything regulated,’ he explained.

However, making a will is not compulsory in Spain.

Broadly, there are two types of succession: testada, when the deceased left a valid will, and intestada, when they did not.

What happens if you die without a will?

When someone dies without a valid will and Spanish succession rules apply, their estate is distributed according to the legal order of inheritance rather than according to instructions left by the deceased.

Descendants such as children generally have priority.

If there are no descendants, other relatives and the surviving spouse may inherit according to the applicable succession rules and family circumstances.

Ultimately, if there is nobody legally entitled to inherit, the estate can pass to the State.

Garcia Acal warns that intestate succession can become a ‘longer’ process in which disputes may arise.

That is one reason he recommends making a will before a notary and obtaining appropriate legal advice.

Inheritance arrangements, he stresses, are effectively ‘like a tailor-made suit’ because every case is different.

A person’s marital status, children, parents, assets and other circumstances can all affect what happens to their estate.

Can you leave your estate to whoever you want?

Spanish succession law contains protections for certain close relatives, known as forced heirs (herederos forzosos).

This means that where Spanish succession law applies, a person cannot necessarily leave their entire estate to anyone they choose.

Exactly how much must be reserved and for whom depends on the deceased’s family circumstances and the succession law applicable to the estate.

This distinction can be particularly important for British and other foreign residents or property owners in Spain, whose estates may involve cross-border succession rules.

Under EU succession rules, habitual residence can play a major role in determining which country’s inheritance law applies, while foreign nationals can in certain circumstances choose the law of their nationality to govern their succession.

For that reason, international residents with assets in Spain should seek specialist advice rather than assume the same inheritance rules will automatically apply to every estate.

Can you disinherit your children in Spain?

Spanish law does allow a forced heir to be disinherited in certain circumstances, but simply falling out with a son or daughter is not necessarily enough.

The permitted grounds are established by law and must be properly stated and, if challenged, may need to be proven.

Garcia Acal highlighted one example involving a person who has denied necessary support to the parent or ascendant seeking to disinherit them ‘without legitimate reason’.

This concept extends beyond simply providing food and can include the obligation to provide necessary support to someone in need.

Other legally recognised grounds can involve serious mistreatment.

But proving that the requirements for disinheritance have been satisfied can be difficult.

‘Proving all of this is complicated,’ Garcia Acal said.

Why making a will can make things easier

Even relatively ordinary family circumstances can create complicated inheritance questions.

For example, where someone dies while married under the Spanish gananciales community-property regime, the matrimonial property must first be dealt with to establish which assets belong to the surviving spouse and which form part of the deceased’s estate.

The deceased’s portion can then be distributed under the applicable succession rules.

Garcia Acal therefore recommends seeking professional advice and making a will before a notary, rather than leaving relatives to resolve everything after death.