Declaration of Heirs in Spain: Steps Before a Notary

🇪🇸 Read the original in Spanish

When a person dies without having made a will, or when a will is declared null or invalid, Spanish law does not leave the successors helpless. However, it does require a mandatory preliminary step before any assets can be distributed: determining who is legally called to inherit. This essential procedure is the *declaration of heirs abintestato** (intestate declaration of heirs), a process that, since the 2015 reform of the Ley de Jurisdicción Voluntaria* (Voluntary Jurisdiction Act), is carried out exclusively before a notary. Coping with the loss of a loved one is already a complex situation in itself, so understanding this bureaucratic labyrinth, its deadlines, costs, and requirements is fundamental to avoiding blocked bank accounts, tax penalties, and family conflicts.

What is the declaration of heirs and when is it mandatory?

The declaration of heirs is a public notary document that defines which relatives have the right to the estate of a person who has died without a will (intestate succession or abintestato).

It is important to clarify that this document does not distribute the assets (that corresponds to the subsequent phase of acceptance and partition of the inheritance), but limits itself to identifying the legitimate heirs by their full names.

This procedure is strictly mandatory in the following scenarios:

• The deceased passed away without making a will.
• The will made is declared null and void by a court.
• The will has lost its validity (for example, if it was made in favour of a spouse whom the deceased later divorced, and no substitute heirs were provided for).
• The heirs designated in the will pass away before the testator, renounce the inheritance, or are unable to inherit, and no substitute heirs exist.

The legal framework: Who has the right to inherit according to the Civil Code?

The order of succession under Spanish common law is rigidly regulated in the *\Código Civil\*** (Civil Code) (Articles 912 and following). The law establishes an order of priority that is exclusionary in nature: closer relatives exclude more distant relatives.

The hierarchical order established by the Código Civil is as follows:

1. Children and descendants: Children inherit in equal shares. If any child has passed away, their own children (the grandchildren) inherit by right of representation.
2. Ascendants: In the absence of descendants, the parents inherit in equal shares. If they are not living, the grandparents inherit.
3. The surviving spouse: Inherits full ownership in the absence of descendants and ascendants. However, if there are descendants or ascendants, the spouse always has a right to their *\cuota viudal usufructuaria\*** (widow's usufructuary share), which is the usufruct of one-third of the estate if there are children, or half of the estate if there are ascendants.
4. Collateral relatives up to the fourth degree: Brothers, sisters, nieces, and nephews in the first instance; in their absence, uncles, aunts, and first cousins.
5. The Spanish State: In the absence of all the above.

The importance of regional charter laws (derechos forales)

It is vital to bear in mind that different civil legislations coexist in Spain. If the deceased had their vecindad civil (civil residence/legal regional status) in autonomous communities such as Catalonia, Aragon, the Balearic Islands, Navarre, Galicia, or the Basque Country, their respective regional charter laws (derechos forales) will apply.

For example, in Catalonia, the surviving spouse or surviving unmarried partner (equated to a spouse under Catalan civil law) holds second place in the order of succession, ahead of the ascendants (parents), which differs radically from the common Código Civil.

Steps before a notary to process the declaration of heirs

The process is carried out at the notary's office and consists of several clearly defined administrative and legal phases.

Step 1: Determining the competence of the Notary

You cannot choose just any notary in Spain. According to the Ley del Notariado (Notarial Act), the applicant must mandatory go to a notary who is competent in the district of:

• The last domicile or habitual residence of the deceased.
• Where the majority of their estate is located (mainly real estate).
• The place of death.
• A notary in a district adjacent to any of the above.

Step 2: Gathering the mandatory documents

Before attending the signing, it is necessary to gather a series of documents that prove the death and the family relationship:

• *\Certificado de defunción\** (Death certificate): Issued by the Registro Civil* (Civil Registry).
• *\Certificado de Actos de Última Voluntad\ (Registry of Last Wills Certificate): An official document proving that the deceased did not make a will (this is requested once 15 business days* have passed since the death).
• *\Libro de Familia\*** (Family Book) or, failing that, birth certificates of all children and the marriage certificate of the deceased.
• DNI (Spanish ID) of the deceased or, if not available, the historical empadronamiento (town-hall registration) certificate to prove their last domicile.

Step 3: Signing the Acta de Requerimiento (Request Deed) and intervention of witnesses

One of the heirs (or a person with a legitimate interest) goes to the notary to sign the Acta de Requerimiento (Request Deed). In this act, the appearance of two witnesses is mandatory.

These witnesses must meet the following requirements:

• They must know the family of the deceased.
• They cannot be beneficiaries of the inheritance (they cannot be the heirs themselves).
• They cannot be direct relatives of the heirs (the aim is to have objective people, such as neighbours or family friends).
• Their role is to assert under their own responsibility that the declared heirs are the only ones they know of, and that they are not aware of the existence of other children or relatives with a better right to inherit.

Step 4: Investigation period, publication, and signing of the Acta de Notoriedad (Deed of Notoriety)

Once the initial deed is signed, the notary carries out the appropriate verifications. If they suspect the existence of other heirs, they can publish announcements in the Boletín Oficial del Estado (BOE, the Official State Gazette) or on the notice boards of the relevant town halls.

By law, the notary must allow a mandatory period of 20 business days to elapse from the signing of the initial deed before they can close the file. Once this period has passed without anyone presenting objections or claims, the notary drafts and signs the Acta de Notoriedad (Deed of Notoriety), formally declaring who the heirs are and in what proportions.

Deadlines, costs, and key figures you must know

The process of inheriting without a will is subject to strict legal deadlines and costs that should be budgeted for in advance.

• 15 business days: The minimum waiting period from the date of death before you can request the Certificado de Actos de Última Voluntad.
• 20 business days: The mandatory waiting period that the notary must respect from the opening of the deed until the final declaration of heirs.
• 6 months: The legal deadline to file and pay the Impuesto sobre Sucesiones y Donaciones (ISD, Inheritance and Gift Tax) from the date of death. This period can be extended for an additional 6 months if requested within the first 5 months of the deadline.
• Between €250 and €600: The average cost of notary fees (tariffs regulated by law) for a standard declaration of heirs. The price varies depending on the number of pages in the document, the attached certificates, and the complexity of the family tree.
• Up to 150%: The maximum surcharge for late filing of the Inheritance Tax if the extension is not requested in time.

Practical examples of declarations of heirs

Example 1: The case of Carlos (Intestate succession under common law)

Carlos dies suddenly in Madrid (where he resides) without having made a will. He leaves a widow (Elena) and two children (Sofía and Pablo). His net estate amounts to €240,000 in bank accounts and a property.

• Procedure: Sofía goes to a notary's office in Madrid with the death certificate, last wills certificate, and two of Carlos's friends as witnesses.
• Result of the deed: Sofía and Pablo are declared heirs in equal shares (€120,000 of theoretical inheritance for each).
• The widow's right: Elena is declared the usufructuary of the "improvement third" of the estate (equivalent to the usufruct of €80,000 of the inheritance), as established by the common Código Civil.

Example 2: The case of Jordi (Intestate succession in Catalonia)

Jordi dies without a will in Barcelona. He has no children, but is survived by his parents (Miquel and Montserrat) and his wife (Laia). His estate is worth €180,000.

• Procedure: As the Civil Code of Catalonia applies due to his vecindad civil, the order of priority changes compared to the common Código Civil.
• Result of the deed: Laia, the widow, is declared the universal heir of all Jordi's assets (€180,000). The parents (Miquel and Montserrat) do not inherit ownership of the assets in this case, although they retain the right to claim the Catalan legítima (forced share, which equates to one-quarter of the value of the estate to be shared between them, i.e., €45,000 in total).

Common mistakes you must avoid

• Delaying the start of the process while waiting to distribute the assets: The declaration of heirs is a preliminary step. If you wait too long, you will exceed the 6-month deadline to pay the Inheritance Tax, which will trigger automatic fines and surcharges from the tax agency (Hacienda), even if you have not yet been able to access the money in the bank accounts.
• Bringing direct relatives as witnesses: The notary will reject the deed if the witnesses are brothers, sisters, children, or spouses of the declared heirs themselves. They must be people close to the family but with no direct interest in the inheritance.
• *Ignoring the vecindad civil of the deceased: Applying the rules of the common Código Civil to a deceased person with Aragonese, Balearic, or Catalan vecindad civil* can invalidate the process or lead to the wrong people being declared heirs, resulting in costly court lawsuits to challenge the deed.
• Failing to locate all bank accounts before paying taxes: If "forgotten" current accounts appear after the declaration of heirs and the tax payment, you will have to carry out an addition to the inheritance and a supplementary tax declaration to Hacienda, doubling the administrative costs.

Frequently Asked Questions (FAQ)

Can funds be withdrawn from the deceased's bank account to pay the notary?

Yes, most banking institutions allow the release of funds from the blocked accounts of the deceased exclusively for the payment of funeral and burial expenses, as well as the notary and tax costs directly associated with the inheritance itself (such as the declaration of heirs or the Inheritance Tax), provided that the corresponding invoice is presented to the bank.

What happens if one of the heirs refuses to sign or appear?

To initiate the deed of declaration of heirs before a notary, the signature of all beneficiaries is not necessary; it is sufficient for just one of them with a legitimate interest to request it. However, for the subsequent phase of acceptance and partition of the estate's assets, the signature and unanimous consent of all declared heirs will indeed be required.

Can nieces and nephews inherit if the deceased had living siblings?

No. According to the principle of proximity of degree in the Código Civil, living siblings inherit per capita and exclude nieces and nephews. The only exception is if a sibling passed away before the deceased; in that case, the children of that deceased sibling (the nieces and nephews) do inherit the share that would have corresponded to their parent by right of representation.

What happens if a will appears after the declaration of heirs has been made?

If a valid, later will is discovered that contradicts the deed of notoriety, the declaration of heirs abintestato automatically becomes null and void. The heirs designated in the actual will can legally claim the restitution of the assets from those who had taken possession of them based on the erroneous notarial declaration.

In summary

• The declaration of heirs is a mandatory procedure before a notary when a person dies without leaving a valid will.
• The process requires the submission of official certificates (death, last wills, birth) and the presence of two witnesses with no direct interest in the inheritance.
• The competent notary must belong to the district of the last domicile of the deceased or where the majority of their assets are located.
• There is a mandatory waiting period of 20 business days from the initial signing before the notary can formally declare the heirs.
• It is crucial to coordinate this procedure with the 6-month tax deadline for the Inheritance Tax to avoid penalties from the tax agency.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.