Inheriting Without a Will in Spain: How Are the Heirs Determined?

When a relative dies and no will appears, immediate questions arise: who inherits, which documents are needed and how a home or a bank account can be dealt with.

The absence of a will does not mean that there are no heirs. It means that it must be established who is entitled to succeed under the applicable law and how that status is to be evidenced.

If the deceased lived in another country or held a foreign nationality, the international context must also be reviewed before starting the procedures.

At MH Legal & Seguros we explain how to organise an inheritance without a will where there are assets in Spain.

First, check whether there really is no will

Not finding a copy among the deceased’s documents does not prove that a will was never made.

The Spanish certificate of Acts of Last Will allows you to check whether a will is recorded and to identify the notary’s office concerned. If a will appears, the authenticated copy must be obtained in order to review its content.

In an international succession it is also worth investigating the documents that may exist in other countries.

Not having a Spanish will is not the same as not having any will. Before starting a declaration of heirs, provide the nationalities, the countries of residence and any information about foreign documents.

What inheriting without a will means

Succession without a will is usually known as intestate succession. In these cases the law establishes who is called to inherit.

Under the Spanish common Civil Code, an intestate succession may also be opened in certain situations in which a will exists, for example where it does not dispose of all the assets or where a designation fails without another legally provided solution applying.

The review must therefore not be limited to asking whether a document exists: it must also check whether that document resolves the succession in full.

Which law determines who inherits

Having assets in Spain does not automatically mean that the order of heirs is that of the Spanish Civil Code.

Under the European Succession Regulation, the general rule looks to the deceased’s habitual residence at the time of death, subject to the exceptions provided for. It must also be checked whether there is a valid choice of law in any succession disposition.

If Spanish law applies, it must also be determined whether the common civil law or a regional civil legislation applies.

This analysis comes before calculating the rights of children, parents, a spouse, a partner or other relatives.

Who inherits under Spanish common civil law

By way of orientation, where the common Civil Code applies, the general order distinguishes:

• Children and descendants, called first.
• Parents and other ascendants, where there are no descendants.
• The surviving spouse, in default of descendants and ascendants, subject to the corresponding legal conditions.
• Collateral relatives, following the legal order and limits.
• The State, where there are no persons entitled to inherit.

This scheme must be completed with the rules of representation, the rights of the spouse when he or she concurs with other relatives and the specific family circumstances. It must not be used as a universal table for any inheritance with assets in Spain.

Does an unmarried partner have the same rights as a spouse?

That should not be taken for granted. The applicable law and the requirements it sets for recognising succession rights in favour of the partner must be checked.

Cohabitation or registration in a register does not by itself allow the conclusion that the partner will inherit on the same terms as within a marriage.

What the declaration of heirs in intestate succession is

Where it falls to be handled in Spain, the declaration of heirs in intestate proceedings evidences who is called to inherit and what rights they hold by law.

It is processed by notarial record before a competent notary. The Notaries Act lays down territorial connections for determining that competence, including the deceased’s last domicile or habitual residence, the location of most of the estate or the place of death, on the terms set by law.

In international files, this procedure should not be started without reviewing the foreign documents that exist and the applicable rules on competence.

Which documentation it is worth preparing

In order to study the file, it is useful to gather:

• Death certificate.
• Spanish certificate of Acts of Last Will.
• Identification of the deceased and of the possible heirs.
• Certificates evidencing birth, marriage and kinship.
• Information on domicile, residence and nationality.
• Foreign succession documents or proceedings.
• Information on relatives who died before the deceased.

The notary’s office may require additional documentation to prove the relevant facts.

The Spanish record must include the statement of at least two witnesses. They may be relatives of the deceased if they have no direct interest in the succession and meet the required conditions.

Declaring who inherits is not the same as distributing the assets

The declaration of heirs and the adjudication serve different purposes.

Once it is established who holds rights, acceptance must be organised and, where applicable, the partition and adjudication of the estate. The Colegio Notarial de Andalucía expressly distinguishes these stages.

Before distributing, it is worth reviewing:

• Which assets belonged to the deceased.
• Whether there was a matrimonial regime that must be liquidated.
• Which debts and expenses exist.
• How the assets will be valued.
• Which decisions require agreement between the interested parties.

If the inheritance includes a home, the documents needed for its registration and later management must also be prepared.

What changes if documents from another country already exist

There may be a foreign certificate of heirs, a court decision or a document evidencing powers over the inheritance.

Before duplicating steps, review what that title proves and how it can be used in Spain.

In the cases provided for by the European Regulation, the European Certificate of Succession allows specific rights or powers to be evidenced in other participating States. Its usefulness depends on its content and on the step intended.

It should not be assumed that a new Spanish declaration is always necessary, nor that any foreign document is sufficient for every procedure.

Do not leave taxes pending on the declaration of heirs

The tax calendar must be reviewed while the succession documents are being prepared.

In files managed by the AEAT, the general inheritance tax deadline is six months from the date of death. The extension must be requested within the first five months, subject to the applicable requirements.

The absence of a will does not allow it to be assumed that the deadline starts when the declaration of heirs ends.

If the file is delayed, it is worth considering as early as possible how to meet the tax obligations.

Frequently asked questions about inheriting without a will

If there is no will, do the assets pass directly to the State?

No. It is first established whether there are persons entitled to inherit under the applicable law. Under the common Civil Code, the State is called only where there is no one entitled under the legal order.

Can a relative decide who the heirs will be?

No. A relative may provide information and promote the file if entitled to do so, but the status of heir is determined by law and must be evidenced.

Does the declaration of heirs automatically adjudicate the home?

Evidencing the heirs must not be confused with the operations needed to accept, distribute and document the acquisition.

Must all relatives inherit in equal shares?

No. The beneficiaries and their shares depend on the applicable law and on the family circumstances.

Can I handle the inheritance if I live outside Spain?

It can be organised through suitable representation where the steps allow it. The file and the necessary powers must be reviewed.

Organise the inheritance with a complete initial review

When no will appears, the first step is to check the existing documents and determine which law applies. From there, the evidence of heirs can be prepared and the remaining steps coordinated.

At MH Legal & Seguros we advise international clients with inheritances in Spain, including where no will exists. We review the family and succession documentation and coordinate the file with the notary’s office and the professionals who need to be involved.

Contact our team to organise the handling of an inheritance without a will in Spain.