We frequently advise clients who come to us because their father, mother or partner has died without having made a will in Spain. They feel unprotected as they believe that the lack of a testament will prevent them from accessing the assets of the inheritance.

First of all, it must be made clear that the fact that a person dies without having a will in Spain does not prevent heirs from receiving the assets that correspond to them. Heirs have the right to receive the assets of the inheritance whether or not there is a will.

For that purpose, anyone with a legitimate interest may request a declaration of intestate heirs (so it is called), which shall be processed before a notary. The declaration of heirs is a document that is intended to determine who are the heirs of a person who died without having made a will or whose will was annulled. This document indicates who are the relatives with the right to inherit.

Once the declaration of heirs is granted, then the distribution and adjudication of the assets can be carried out. That is, the inheritance deed can now be signed.

What are the requirements to sign the declaration of heirs?

Anyone who considers that he/she has the right to receive an inheritance can go to a notary and provide the following documents, necessary to prepare the declaration of heirs:

    • Literal death certificate of the person whose inheritance is claimed

Funeral homes usually provide this certificate, but, if not, it will have to be requested from the corresponding Civil Registry.

    • Family record book of the deceased

If it is not possible to provide this document, the birth certificates of the sons and daughters of the deceased can be presented instead. The deceased’s marriage certificate will also be provided in the case that he/she was married.

    • Certificate from the Spanish Registry of Last Wills and Testaments

This certificate is essential to know if the deceased did not actually make a will. The notary’s office can request it on behalf of any prospective heir.

    • Spanish Id. Card, or municipal registration certificate of the deceased

In addition, two witnesses who knew the deceased must appear at the notary’s office. They may be family members, as long as they are not potential beneficiaries of the inheritance. Their statement will serve to confirm the relationship between the deceased and the people who intend to inherit, and that there are no other closer relatives.

What happens after the declaration of heirs is signed?

Based on the documentation provided and the statements of witnesses, the notary will determine who has the right to inherit. Before issuing his/her decision, a period of 20 business days is given, in case someone else goes to the notary to claim that right. After this period, those who have been designated heirs will be able to sign the deed of acceptance of inheritance.

Who inherits first in the event of death without a will?

In Spain, the legal heirs are in this order:

  1. The descendants (children, grandchildren, and so on).
  2. The ancestors (parents and grandparents).
  3. The spouse.
  4. Siblings, and nephews and nieces.
  5. Collaterals up to the fourth degree (aunts and uncles, and cousins).
  6. The Spanish State.

In the absence of a will, the above mentioned order should be strictly enforced.  This means that a grandchild could inherit before the husband or wife of the deceased, and that the assets that the widowed spouse would receive would be significantly less than what they would otherwise receive in the event of having a will. 

On the other hand, if the deceased and/or his/her heirs are not Spanish nationals or do not reside in Spain, the lack of a will can make the inheritance procedure extremely complicated.

No one likes to think about death, but it is highly recommended that we spend some time planning how we want our assets to be distributed when we are no longer here, and that we sign a will before a notary.

Granting a will is simple, inexpensive and has many advantages:

    • We avoid, as much as possible, conflicts and hostility between family members in an already sad and sensitive time.
    • We facilitate the legal procedures for our heirs.
    • And lastly, we make our will perfectly clear.

At Real(i)ty & Law, we can help you to prepare your will, and take care of any other inheritance procedure for your peace of mind.