Declaration of heirs: what to do when there is no will in Spain
If your relative died without a will, or the one they left is of no effect, in practice nothing can be done with the estate until a notary declares who the heirs are. Who inherits by law, what documents are needed, how long it takes and what comes afterwards.
When a declaration of heirs is needed
The declaración de herederos abintestato is the notarial record that establishes who inherits where there is no valid will. It is the nearest Spanish equivalent of a grant of letters of administration, with one essential difference: it names the heirs, it does not appoint anyone to administer the estate. It is needed in three situations: where the deceased never made a will; where there is a will but it is void or of no effect (for instance after a successful challenge, or because all the heirs named in it died first or renounced); and where the will does not dispose of all the assets, as regards the part not disposed of (art. 912 CC).
Without that record, the banks will not release the accounts, the Land Registry will not register anything and the estate cannot be divided. It is the first step in any intestate estate and usually the first thing to get stuck as well.
Who inherits by law: the order of intestate succession
The Civil Code calls the relatives in order, and each group excludes the next (arts. 930 to 958 CC):
- Children and descendants, in equal shares; grandchildren inherit per stirpes in place of their deceased parent (arts. 932 and 933 CC).
- Parents and ascendants, where there are no descendants (art. 935 CC).
- The surviving spouse, where there are neither descendants nor ascendants (art. 944 CC), provided they were not legally separated or separated in fact (art. 945 CC). Alongside either of the first two groups, the spouse keeps their statutory usufruct, subject to the same proviso (art. 834 CC).
- Brothers, sisters, nephews and nieces, and then the remaining collateral relatives up to the fourth degree (uncles and aunts, first cousins), where there is no spouse (arts. 946 to 955 CC).
- The State, where there is no relative entitled to inherit (art. 956 CC). Madrid has no separate regional rule on this.
An unmarried partner does not inherit under Spanish common law, however many years the couple lived together: they can receive only what a will leaves them. It is one of the harshest outcomes we see in the office, and a strong reason to make a Spanish will.
How it is dealt with before a notary
Since 2015 a declaration of heirs is always dealt with before a notary, including where brothers, sisters, nephews, nieces or cousins inherit (arts. 55 and 56 of the Notaries Act, Ley del Notariado). The notary with jurisdiction is the one for the place of the deceased’s last domicile, for the place of death, for the place where most of their assets are, or for an adjoining notarial district.
Who applies, and what has to be produced
- Anyone with a legitimate interest in the estate (normally one of the heirs) makes the request to the notary.
- Death certificate and certificate from the Central Register of Last Wills (available from fifteen working days after the death) showing that there is no will, or a copy of the will that is of no effect.
- Family record book (libro de familia) or birth and marriage certificates proving the relationship; the deceased’s identity document; and, where one of those called has died, their death certificate. Documents issued abroad normally need an apostille and a sworn translation.
- Two witnesses who know the family and can state that there are no other heirs with an equal or better right.
Timing and outcome
The notary opens the record, takes the evidence and, once twenty working days have passed since the request (or since the end of the period for public notices, where not all those interested are known), closes it by declaring who the heirs are and in what proportions. With that record in hand the estate can be accepted, the tax paid and the division carried out. If someone disputes the relationship, or an unexpected heir appears, the notary closes the record with his own ruling and anyone who disagrees may go to court (art. 56 of the Notaries Act).
What comes next
A declaration of heirs divides nothing: it only says who inherits. After it, the estate has to be accepted (unconditionally or under benefit of inventory, as we explain in the guide to accepting or renouncing), inheritance tax has to be paid within six months, the assets have to be listed and valued, the community of acquests has to be wound up if the deceased was married under that regime, and the deed of division has to be granted. If the heirs cannot agree, the division ends up as a judicial division of the estate.
A warning we often give. Where one of the heirs at law is a brother, a nephew or a niece who lives far away and does not reply, the declaration of heirs can still be obtained, but the division gets stuck. In that case it is worth serving a notarial request on them to accept or renounce (art. 1005 CC) before the silence drags on for years; we explain it in the guide to accepting or renouncing an inheritance.
How we handle it, step by step
Certificates and relationships
Death, last wills, family record book and whatever documents prove who is related and in what degree; from abroad as well, where that is needed.
The notarial record
We prepare the request, go with the witnesses and follow the matter through until the record is closed.
Acceptance and tax
We decide with you whether accepting under benefit of inventory makes sense, and we file the inheritance tax return within the six months.
Inventory and division
Assets, debts, matrimonial property and a proposed division; a deed of division or, failing agreement, judicial division.
Deadlines worth not letting slip
- Fifteen working days have to pass from the death before the certificate of last wills can be requested; the record cannot be opened without it, so it is worth gathering the other documents in the meantime.
- Twenty working days at least from the notarial request until the declaration of heirs is closed.
- Six months from the death for inheritance tax, extendable by a further six if applied for within the first five; the clock runs even while the declaration of heirs is under way.
Common questions about the declaration of heirs
My father died without a will and my mother is alive. Who inherits?
The children inherit in equal shares, and your mother keeps the usufruct over the betterment third, as well as her own half of the community property, which is not part of the estate at all.
My uncle died unmarried and childless. We are his nephews and nieces. Do we inherit?
If neither his parents nor his siblings are alive, yes: the nephews and nieces inherit in equal shares between them, in their own right (art. 927 CC). If a sibling of the deceased is alive, the nephews and nieces inherit per stirpes, in the place of their own predeceased parent (art. 948 CC).
We were unmarried partners for twenty years. Do I inherit anything?
By law, under Spanish common law, no. Only what a will leaves you. It is worth checking whether there are life policies, pension plans or jointly held accounts, which follow different rules.
What does a declaration of heirs cost?
The notary’s scale fee is moderate and varies with the number of heirs and documents; our own fees are quoted in writing before we start. What makes an intestate estate expensive is not the notarial record but the disagreement that follows over the division.
One of the heirs at law has disappeared and does not reply. Can we go on?
The declaration of heirs can be completed. The division needs that heir to take part, or a notarial request obliging them to decide; if they still do not reply, they are treated as having accepted and the judicial division route is open.
Where we work
Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo, Valdemorillo and the rest of western Madrid. Succession proceedings are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. This guide forms part of our inheritance and succession practice in Villanueva de la Cañada.
Tell us about your case
If your relative died without a will and you do not know where to start, bring us the death certificate and the family record book. We study every case before taking it on, and we tell you frankly what steps are needed and how long they take.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)