Inheriting with no will in Spain (declaración de herederos)

Terms used

• Declaración de herederos — The declaración de herederos is the official notarial statement of who the legal heirs are when there is no will.
• Vecindad civil — The vecindad civil is your regional civil status, which decides whether common or regional inheritance law applies to you.
• Acta de notoriedad — The acta de notoriedad is the notarial document that records the declaration of heirs after the notary checks the facts.
• Usufruct — The usufruct is the right to use property or receive its income without owning it.
• Parejas de hecho — Parejas de hecho are unmarried couples who live together as partners, with rights that depend on the region.

Key rules

• Governing law: The law of the country where the person last habitually lived usually decides the whole estate, not their nationality.
• Order of heirs: Children come first, then parents and grandparents, then the spouse, then other relatives, then the State.
• Notary route: A notary near the deceased's last residence can declare the heirs, with no court needed.
• Distant relatives: For relatives beyond the second degree, the notary waits at least 20 days for objections.
• Unmarried partners: A partner has inheritance rights only in some regions, so check the region's rules.

Which law decides who inherits

If the person lived in Spain at death, Spanish law applies. If they lived in another country, that country's law normally governs the whole estate, even for Spanish property. This applies to deaths from 17 August 2015. Nationality does not decide it. A choice of national law only counts if the person made it validly before death, usually in a will.

Inside Spain, the region matters. Catalonia, Aragon, Navarre, the Balearic Islands, Galicia, the Basque Country (Vizcaya's Tierra Llana) and part of Extremadura have their own civil law. Which one applies depends on the person's vecindad civil, their regional civil status. People get it by birth to parents who have it, by 2 years of residence with a declaration, or by 10 years of residence without objection. A foreigner who died in Spain without regional vecindad is normally under common Código Civil law. Regional rules can change the spouse's rights and the forced shares, so ask a notary which law applies.

Who inherits, in order

Each group inherits only if the one before it does not exist. This is the order under common law:

1. Children (and their descendants if a child has died). The surviving spouse gets a usufruct of one third of the estate, meaning the right to use it or its income.
2. Parents, then grandparents. The spouse gets a usufruct of half.
3. The surviving spouse, who takes everything, unless separated or divorced.
4. Other relatives: siblings and their children, then relatives up to the fourth degree.
5. The State, with part going to charitable bodies.

Unmarried partners (parejas de hecho) have inheritance rights only in some regions. Do not assume a partner inherits. Check the rules of the region where the person lived.

How the notary declares the heirs

You do not need a court. A relative with a legitimate interest goes to a notary near the deceased's last residence and asks for a declaración de herederos. The notary records it in an acta de notoriedad. The documents are in the list below.

The notary publishes notices where needed. If the heirs are relatives beyond the second degree, the notary waits at least 20 days after publication for objections. Cases where the State may inherit go through the courts, not the notary.

Expect 20 days to 2 months, and longer for distant relatives. Fees follow the notarial tariff and are typically a few hundred euros. Ask for a quote first.

Once you have the declaration, it is the document you use to deal with banks, the property registry and the tax office. Debts, a will that turns up later or an unknown heir are covered in the "What if" section below.

Choosing between options

Which country's or region's law governs the inheritance?

• Law of the person's home country: The person habitually lived in their home country at death, even if they owned Spanish property.

• Common Spanish Civil Code law: The person habitually lived in Spain at death and had no regional civil status.

• Regional civil law: The person habitually lived in Spain and had regional civil status, for example in Catalonia, Aragon, Navarre, the Balearic Islands, Galicia, the Basque Country or part of Extremadura.

The law of the place where the person habitually lived at death decides, not nationality. If that is Spain, regional civil status decides which Spanish law applies.

Timeline and deadlines

• Go to a notary near the deceased's last residence with your documents: to start the process

• Notary publishes notices where needed: after you submit the documents

• Receive the notarial declaration of heirs: usually 20 days to 2 months in total

Documents you need

• Death certificate of the deceased.

• Last-will certificate from the central registry, showing the person left no will.

• Family book (libro de familia), or birth and marriage certificates, to prove who the relatives are.

• Two witnesses, or documents proving kinship, to confirm the family relationship.

Checklist

• Confirm that the person left no will, using the last-will certificate.

• Work out who is first in the statutory order: children, then parents and grandparents, then the spouse, then other relatives, then the State.

• Gather the death certificate, family book or birth and marriage certificates, and two witnesses or proof of kinship.

• Choose a notary near the deceased's last residence and ask for a fee quote.

• Ask the notary to start the declaration of heirs as a relative with a legitimate interest.

What if there are debts, a missing will or an unknown heir?

If you cannot find a will

Start by requesting the Certificado de Actos de Última Voluntad from the Registro General de Actos de Última Voluntad, which is run by the Ministry of Justice. You can ask for it once at least 15 working days have passed since the death. You will need the death certificate. The certificate shows whether a will exists and which notary authorised the last one.

Then do this:

1. If a will exists, ask that notary for a copy.
2. If the deceased wrote a will by hand (a holograph will), it must be taken to court for verification within 5 years of the death.
3. If the deceased was a foreigner, also check the will register or notaries in their home country. Foreign wills may also be recorded with Spanish notaries.
4. If the certificate shows no will and none turns up, the estate is intestate. A notary or a court then names the heirs in the legal order: children, then parents and other ascendants, then the spouse, then more distant relatives, and finally the State.

If you do not know who the heirs are

Close relatives can get a declaración de herederos from a notary, in a document called an acta de notoriedad. If there are no relatives, or the heirs are disputed, the case goes to court.

Other situations:

• An heir cannot be reached. The court can appoint a defensor judicial to represent them.
• An heir has disappeared. The court can declare a situation of ausencia and name a representative.
• The assets need protecting in the meantime. The court can place the estate under an administrator.
• There are no heirs at all. After a court declaration, the State inherits. In some regions it is the autonomous community.

Until the heirs are identified, the estate stays frozen and the split of assets is delayed.

Heirs have no deadline to accept. But anyone with an interest in the estate can ask a notary to give an heir 30 days to decide. If you are waiting on a slow heir, this is the tool to use.

The right court and the exact procedure depend on your case and region. Ask the notary handling the estate, or the court office in the deceased's last town.

If the deceased left debts

Do not pay the deceased's debts from your own money, and do not sign anything that accepts the inheritance, until you know what the estate owes. Accepting can make you responsible for those debts. Before you accept, ask a notary or a lawyer to explain how to accept safely.

Gather the bank statements, loan papers, tax letters and any unpaid bills. Take them with you. The heirs have to be identified first, so the steps in the two sections above come before dealing with the debts.

Frequently asked questions

Does my home country's law decide who inherits if I live abroad?

Usually the law of the country where the person habitually lived at death decides, not their nationality. A foreigner who lived in their home country but owned Spanish property is normally governed by that country's law. A foreigner who lived in Spain is governed by Spanish law.

Which region's inheritance law applies if the person died living in Spain?

Spanish law applies, and the region is set by the person's regional civil status (vecindad civil). Regions with their own rules include Catalonia, Aragon, Navarre, the Balearic Islands, Galicia, the Basque Country and part of Extremadura. Someone without regional status is under common Civil Code law.

How long does a notary take to declare the heirs?

The notarial declaration usually takes 20 days to 2 months. Cases with collateral relatives, such as siblings or nephews, take longer because of a wait of at least 20 days for objections.

Does my unmarried partner inherit if there is no will?

Only in certain regions, because unmarried partners (parejas de hecho) have intestacy rights only where regional law gives them. Under common law they are not in the statutory order. Ask a notary in the deceased's region about local rules.