When a person dies without having made a will, the estate doesn't fall into a legal void: the law sets out a predetermined order of heirs (known as intestate succession, or "ab intestato"), which applies automatically in the absence of any expressed wishes from the deceased.
The order of heirs
The law establishes an order of priority among the various relatives entitled to inherit in the absence of a will:
- Children and descendants, who inherit first, with a right of representation for their own descendants if any of them had died beforehand.
- Parents and ascendants, if there are no descendants.
- Surviving spouse, alongside the above depending on which category is present (entitled to the usufruct of part of the estate if there are descendants or ascendants, or to full ownership of the whole estate if none of the above exist).
- Siblings and nieces/nephews, if none of the above exist.
- Other collateral relatives up to the fourth degree.
- The State, as a last resort, if no relative is entitled under the categories above.
Where a domestic partner stands in this legal order
As explained in the article on financial planning for domestic partnerships, an unmarried domestic partner generally does not appear in this legal order of intestate succession under the common Civil Code, unlike a spouse. This is one of the most important reasons why making a will is especially important for couples who live together without marrying.
Particularities of regional civil law systems
Certain autonomous communities with their own regional (foral) civil law have different intestate succession rules than the common Civil Code, which can differ in the order of heirs, the rights recognized for a spouse or domestic partner, or other relevant aspects, so it's worth finding out whether your situation is subject to a specific regional civil law regime.
Why it's worth making a will even if the legal order seems fine to you
Even if the legal order of intestate succession broadly matches what you would want, making a will lets you settle matters the law doesn't resolve with the same precision (such as the exact division of specific assets among several heirs of the same degree), while also avoiding the need for a longer and more costly legal procedure (a declaration of heirs) that is required when there's no will.
The cost and process of a declaration of heirs
Without a will, before the estate can be divided, a declaration of heirs must be processed before a notary (or, in certain cases, before a court), an additional step in time and cost that isn't needed when a valid will exists, which considerably speeds up and cheapens the whole process of accepting the inheritance.
Plan your own succession wisely
Making a will is one of the simplest financial and legal decisions to formalize, and one with the greatest potential impact on your family. Consult a notary about the specific steps for your personal and financial situation.