Declaration of heirs - Jesús Benavides Notary's Office

Declaration of intestate heirs

Step 1

What is a declaration of heirs?

It is the notarial document by means of which the person or persons who are heirs of a person who has died without a will are determined in accordance with the corresponding legislation.

Step 3

How much does it cost to make the declaration of intestate succession before a notary?

See indicative budget

This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.

Step 4

More frequently asked questions

What is inheritance law?

The death of people is a natural fact, an immutable and inevitable biological reality that reaches all human beings, since all of us, sooner or later, die.

This reality, beyond the pain and sorrow that it generates in all the relatives and loved ones of the deceased person, generates a series of consequences in the patrimonial sphere of the persons that it is necessary to order and resolve, since every human being, when he/she dies, to a greater or lesser extent, has a series of assets, rights and obligations whose owner has passed on. Logically, the new ownership of all these assets, rights and obligations must be determined, as this is necessary to ensure legal certainty, the conservation and preservation of such assets, rights and obligations and the value they treasure, as well as the continuation of the activities and legal relationships that derive from such assets and that provide value and wealth to society.

On this basis, the Spanish legislator, being aware of the transcendence that these situations generate in the life and death of persons, has long established a set of legal rules that regulate the succession of persons, that is, the set of rules that should regulate how the new ownership of the assets, rights and obligations of a person is determined, when that person dies. 

Entering into the analysis of the aforementioned regulations, first of all, it is necessary to refer to the concept of succession rights, taking into account that the succession rights of a person are transmitted from the moment of his death. Thus, when a person dies, a succession right is generated, i.e., a right in favor of a person to become the new owner of all the assets, rights and obligations of this deceased person.

The determination of the person or persons to whom it will correspond to acquire these succession rights is set forth in the law, which establishes that the succession is granted by the will of man manifested in a will, and, in the absence of a will, by provision of the law. As it can be observed, the legislator has established two main ways to determine to which persons will acquire the succession rights of the deceased person, as follows:

  • The will, which can be defined as the act in which a person determines how his estate is to be distributed at the time of his death. In this case, we can speak of testamentary succession (for more details on wills, please visit the corresponding section of this web page).
  • And in the absence of a will, that is to say, when the deceased person has not granted a will, the succession will be governed by the provisions of the law, that is to say, the ownership of the estate of the deceased will be attributed to the person or persons that the legal norms establish for this purpose. In this case, we can speak of legitimate succession.

In any case, it is necessary to specify that in certain cases the succession may also be deferred jointly by the will of man and by the provisions of the law.

Finally, in this section, it is necessary to specify that the Law calls this set of assets, rights and obligations of the deceased the inheritance, which may be attributed to an heir, who will succeed universally with respect to all the assets and rights of the deceased, or to a legatee, who will succeed individually, that is to say, only with respect to specific assets and rights.

What is intestate succession?

As has just been indicated, the succession of persons may be governed by two main ways, such as testamentary succession or, failing that, by the provisions of the law. 

Thus, when a person dies, the determination of the new ownership of his assets, rights and obligations that have not been extinguished with his death will be ordered by what that same person has established in his will and, in the absence thereof or when the same cannot be applied, by the rules and precepts established by the applicable civil legislation in this respect.

On this basis, intestate succession can be defined as the set of cases in which a person either dies without a will, or in which there are certain circumstances that prevent the will that may exist from being applicable to the succession of the deceased. Therefore, when this situation arises upon the death of a person, it is necessary to resort to the provisions of the civil law to determine which persons should be declared heirs of the deceased, in order to guarantee the legal security, the conservation and preservation of the assets, rights and obligations of the deceased that contribute value and wealth to the society.

Thus, legitimate succession, i.e., intestate succession, is applicable in the following cases:

  1. When a person dies without a will, or with a will that is null and void or that has later lost its validity. The first assumption defined by the law details several different situations, among which it is worth mentioning:

    • In the first place, and logically, the case in which a person dies without a will, in which case it is clear and evident that the rules of intestate succession will apply to order his or her succession.
    • Likewise, this section includes another assumption such as the nullity of the will, which will happen, for example, when the formalities established by law have not been observed in its execution, when the person who executed it was not in full use of his mental faculties, or if it was executed with violence, fraud or fraudulent intent. In any case, this declaration of nullity can only be declared by virtue of a court judgment.
  2. When the will does not contain an institution of heir in all or part of its assets, or does not provide for all of those corresponding to the testator. In this second case, we can refer mainly to those situations in which the testator has not established an heir or heirs in his will, but has distributed his inheritance in legacies, but part of his assets have not been assigned to a specific legatee. In such cases, intestate succession will only take place with respect to those assets that the deceased did not provide for in his will.
  3. When the condition attached to the institution of the heir is missing; or when the heir dies before the testator; or when the heir repudiates the inheritance, without having a substitute and without there being a right of accretion in favor of other heirs. In this third set of situations, the following cases can be distinguished:

    • In the first place, when the condition imposed on the heir is not fulfilled, that is to say, when an heir has been instituted under condition and said condition has not been fulfilled, thus, the condition of heir has not been reached (as, for example, if a person has instituted a nephew as heir in exchange for him to take care of the testator until his death, and said care has not been provided).
    • Likewise, intestate succession will proceed when the heir dies before the testator, since logically if any person names a person as heir and this person dies before the testator, the inheritance rights have not been transmitted (since this only happens at the moment of his death), and if there are no other persons in the will to whom it corresponds to inherit, then intestate succession will proceed.
    • The last case described in this section corresponds to those situations in which the heirs repudiate the inheritance (i.e., formally reject it so that they do not wish to acquire ownership of the assets, rights or obligations that have been granted to them) and there are no other persons to whom it corresponds to inherit (either by right of substitution or of accretion), in which case the opening of the intestate succession will also proceed.
  4. When the heir is incapable of succeeding. Lastly, the legislator establishes that intestate succession will be applicable when the heir is incapable of succeeding, which will happen, among other cases, when there are causes of unworthiness to succeed or in the cases of dispositions in favor of the Notary who authorized the will, in favor of the testator's guardian or curator, or in favor of an incapable person.

Who has the right to succeed the deceased in the intestate succession when Catalan Civil Law applies?

In the field of Catalan civil law, the main issues to be highlighted are undoubtedly the order of succession, which has the following particularities:

Firstly, in accordance with article 442-1 CCCat, the inheritance will be deferred to the children of the deceased, in their own right, and to their descendants by right of representation (which in Catalan civil law is expressly regulated in article 441-7 CCCat), and must be taken into account:

  • If the children or descendants concur to the inheritance with the widowed spouse or the surviving cohabitant in stable partnership, the latter will be entitled to the universal usufruct of the inheritance (article 442-3 CCCat), although he/she may exercise his/her right of commutation, provided for in article 442-5 CCCat, which will allow him/her to be attributed a fourth aliquot part of the inheritance and also the usufruct of the marital or family home. Provided that it is requested within one year after the death.
  • In case of repudiation of the inheritance of one of the children or descendants called to the succession, his share shall be added to that of the other descendants of the same degree.
  • If all the called descendants of the same degree repudiate the inheritance, it will be deferred to the descendants of the next degree in their own right, but divided by lineage and in equal parts among the descendants of each lineage (Article 442-2.1 CCCat). 
  • However, this will not happen if all the children of the deceased repudiate the inheritance during the lifetime of the spouse or cohabiting partner, and the latter is their common parent (Article 442-2.2 CCCat), which in practice is very common, since it allows the entire inheritance to be defended in favor of the surviving spouse.

Secondly, and in the absence of children or descendants of the deceased, the inheritance is deferred to the widowed spouse or the surviving stable cohabitant (Article 442-3.2 CCCat), but the parents of the deceased will retain the right to the reserved portion. However, the widowed spouse will not have the right to succeed intestate if at the time of the opening of the succession he/she was separated from the deceased judicially or de facto, or if a marriage annulment, divorce or separation lawsuit was pending, unless the spouses have reconciled (Article 446-2 CCCat).

Thirdly, in the absence of children or descendants and without a spouse or cohabitant, the inheritance is deferred to the parents in equal parts (Article 442-8 CCCat), and if only one of them is living, the deferral to this one extends to the entire inheritance. On the other hand, if the deceased died in the situation described above and also without parents, the inheritance will be deferred to the ascendants in the closest degree (Article 442-8.2 CCCat), taking into account that if there are two lines of relatives of the same degree (for example, paternal and maternal grandparents), the inheritance is divided by lines, and within each line, by heads.

Fourth, in the absence of children or descendants, without a spouse or cohabitant and also without other ascendants, the inheritance will be deferred to the collateral relatives (Article 442-9 CCCat), with the following structure (Article 442-10 CCCat):

  1. Siblings, in their own right, and the children of siblings, by right of representation, succeed the deceased in preference to other collateral relatives, without distinction between siblings with double or single relationship.

    As an example, if the deceased had two brothers named Juan (living person) and Antonio (already deceased and with two living children, named Marc and Carles), Juan will be entitled to 50% of the inheritance in his own right and the nephews of the deceased, Marc and Carles, 25% of the estate by right of representation.
  2. However, if there are no siblings, the nephews and nieces succeed the deceased in their own right and by heads.

    Following the previous example, if Juan had also died (and had a daughter named Anna), the inheritance would be divided in 33% for Anna, Marc and Carles.
  3. In the event that siblings and children of siblings concur to the inheritance and there is only one lineage of nephews and nieces, these receive by heads what corresponds to the lineage (case of example A). However, if there are two or more lineages of nephews, the parts corresponding to the called lineages are accumulated and all the nephews that integrate them succeed in the whole by heads.

    Following the example A above, if the deceased had had a third brother, also deceased (who in turn had a daughter named Mireia), Juan would still be entitled to 50% of the inheritance, while the remaining 50% would be divided equally between Marc, Carles and Mireia, that is, 16.66%.
  4. In the absence of siblings and children of siblings, other relatives of the closest degree in the collateral line within the fourth degree will succeed, by heads and without the right of representation or distinction of lines (Article 442-11 CCCat).

Finally, in the absence of all the relatives indicated above, the Generalitat de Catalunya will succeed (Article 442-12 CCCat).

Who is entitled to succeed the deceased in intestate succession when the common law applies?

The order of succession in the cases of intestate succession, that is to say, to which persons and in what order it corresponds to declare heirs, in our legal system is determined by what is established in the Civil Code in its articles 930 and following. In order to understand the content of this regulation, first of all, the order of succession will be explained in a generic way and later, the particularities that each of the detailed figures can present. 

Thus, as regards the order of succession generically understood, it is necessary to specify that:

  1. In the first place, the descendants of the deceased will inherit (i.e., their children, grandchildren, etc.).
  2. In the absence of these, the ascendants of the decedent (i.e. parents, grandparents, etc.) will inherit.
  3. In the absence of ascendants and descendants, the surviving spouse, if any, will inherit.
  4. In the absence of descendants, ascendants and surviving spouse, collateral relatives up to the fourth degree (i.e., siblings, nieces, nephews, etc.) will be entitled to inherit.
  5. And in the absence of all of them, the succession will correspond to the State.

What is the right of representation?

The right of representation is a hereditary right by virtue of which the relatives of a deceased person are recognized to succeed the deceased person in all the rights that he/she would have had if he/she had lived or had been able to inherit.

<ejemplo>Así pues, y a modo de ejemplo, en un supuesto de sucesión intestada en que una persona fallezca con únicamente un hijo vivo y dos nietos (estos últimos, hijos de un segundo hijo fallecido previamente), los dos nietos adquirirán los derechos hereditarios a la sucesión de su abuelo por representación de su padre fallecido.<ejemplo>

As the most important aspects of this right of representation, it is necessary to state the following:

  • The right of representation always takes place in the descending line (i.e. from parents to children, grandchildren, etc.) but never in the ascending line. As far as the collateral straight line is concerned, it will only take place in favor of the children of siblings (a matter already detailed in the previous section).
  • Whenever succession is by representation, the division of the inheritance will be made by lineage, so that the representative or representatives do not inherit more than what the represented party would inherit, if living(following the previous example, this implies that the son of the deceased would be entitled to 50% of the inheritance and the two grandchildren the remaining 50% to be divided between them).
  • As already indicated in the previous question, if children of one or more siblings of the deceased remain, they will inherit by representation if they concur with their uncles and aunts, but if they concur alone, they will inherit in equal shares.
  • On the other hand, it is also necessary to point out that the right to represent a person is not lost for having renounced his or her inheritance(i.e., for example, a person could renounce the inheritance of a parent and subsequently compete for the inheritance of his or her grandparent by virtue of the right of representation).
  • Finally, it is necessary to know that a living person cannot be represented except in cases of disinheritance or incapacity(so that, for example, children of disinherited or incapacitated persons may compete to the inheritance of their grandparents by right of representation, even if their parents are still alive).
See more frequently asked questions

Who can file a declaration of intestate succession?

In accordance with Article 55 of the Law of May 28, 1862, Organic Law of Notaries (wording given by the eleventh final provision of Law 15/2015, of July 2, on voluntary jurisdiction), the act of declaration of intestate heirs may be urged by persons who have a legitimate interest in it, for which it will be necessary that the following requirements are met in them:

  1. In the first place, it will be necessary that they are persons who consider themselves entitled to succeed to the estate of the deceased.
  2. And, secondly, that they are descendants, ascendants, spouse or person united by an analogous relationship of affectivity to the conjugal one, or collateral relatives of the person whose act of declaration of intestate heirs is sought.

Thus, in accordance with the aforementioned law, only those relatives who have the right to succeed their relative intestate (see the previous questions) and who, in the specific case, believe that they may have the right to succeed him intestate, given the specific circumstances of the case, will have legal standing to do so.

Which Notary is competent to process the act of declaration of intestate heirs?

With regard to the territorial competence of the notary to request this act, the aforementioned Article 55.1 of the Notary Act establishes that acts of notoriety of this nature may only be authorized by a competent notary, at the choice of the applicant, from among all those indicated below:

  • The place where the deceased had his last domicile or habitual residence.
  • That of the place where the greater part of the deceased person's estate is located.
  • That of the place where the deceased died.

Likewise, he may also choose a competent Notary Public in a district adjacent to the previous ones and, in the absence of all of them, before the Notary Public of the applicant's domicile.

What is the process to be followed to obtain the declaration of intestate heirs?

The procedure to be able to obtain an act of declaration of intestate heirs is regulated in Article 56 of the Law of May 28, 1862, Organic Law of the Notary Public. According to the above mentioned precept, this act, which may be requested by the aforementioned persons, must contain the following:

  1. The designation and identification data of the persons that the applicant considers called to the inheritance, that is to say, of all those who have the right to inherit.
  2. It must also be accompanied by the documents proving the relationship with the deceased of the persons designated as heirs (see section on necessary documentation), as well as the documents certifying the identity of the deceased and his or her address (see section on necessary documentation).
  3. In any case, the death of the deceased must also be accredited, as well as the fact that such death occurred without succession title, by means of:

    a) Information from the Civil Registry and the General Registry of Last Will and Testament Acts.

    b) Or, as the case may be, by means of an authentic document from which, in the opinion of the Notary, there is no doubt that, in spite of the existence of a will or contract of succession, the succession is intestate (for example, when all the heirs designated in the will granted by the deceased have already died).

    c) Or by means of a final court decision declaring the invalidity of the succession title or of the institution of the heir.

    In any case, all these documents presented, or by testimony thereof, shall be incorporated into the deed.
  4. In addition, the requesting party must affirm the certainty of the positive and negative facts on which the deed is to be based, and must offer testimonial information regarding the fact that the person whose succession is in question has died without a last will and that the designated persons are his only heirs.

    In any case, it must be taken into account that if any of the interested parties is a minor or a person with a judicially modified capacity and lacks a legal representative, the Notary shall communicate this fact to the Public Prosecutor's Office so that it may instigate the designation of a legal defender.
  5. It is necessary to note that the law, in this case, also requires that the record must necessarily include, at least, the declaration of two witnesses who affirm that they are aware of the positive or negative facts whose declaration of notoriety is sought. Said witnesses may be, where appropriate, relatives of the deceased, either by blood or affinity, when they have no direct interest in the succession.

Finally, it is necessary to indicate that the Notary, in order to ensure the hearing of any interested party, in addition to the evidence proposed by the requesting party, may additionally practice all those that he considers appropriate, especially all those aimed at accrediting his identity, domicile, nationality and civil domicile and, if applicable, the applicable foreign law. 

In relation also to the interested parties that may concur in the succession, it is necessary to state for the record that:

  • If the identity or domicile of any of the interested parties is unknown, the Notary shall request, by means of an official letter, the assistance of the public and consular bodies, Registries and authorities which, by reason of their competence, have files or records relating to the identity of the persons or their domiciles, in order to obtain the information requested.
  • In the event that the identity or domicile of any of the interested parties cannot be ascertained, the Notary Public must publicize the processing of the act by means of an announcement published in the Official State Gazette and may, if he/she deems it convenient, use other additional means of communication. Likewise, he/she must post the announcement of the act on the notice boards of the Town Halls corresponding to the last domicile of the deceased, the place of death if different, or the place where most of his/her assets are located (all of this in order to be able to locate any interested parties in the intestate succession of the deceased in question).

In any case, it is necessary to take into account that any interested party may oppose the claim for the declaration of intestate heirs, present allegations or provide documents or other evidence within a period of one month from the day of publication or, if applicable, from the last exposure of the notice.

Finally, once all the aforementioned procedures have been carried out, and once the period of twenty working days has elapsed (counting from the initial request or from the end of the period of one month granted to make allegations in case an announcement has been published), the Notary shall record his overall judgment on the accreditation of the facts and presumptions on which the declaration of heirs is based, thus proceeding to conclude the deed and its subsequent notarization.

  • In said act, therefore, in the affirmative case (that is to say, in case the right of the interested parties has been accredited), the Notary will declare which relatives of the deceased are the intestate heirs, expressing their identity circumstances and the rights that by law correspond to them in the inheritance, which in practice will allow them, if they so wish, to accept the corresponding inheritance by means of the granting of the appropriate public deed.
  • On the contrary, in negative case (that is to say, when the notary public considers that the right to be recognized as heir has not been accredited), the Notary will record in the minutes the right of such persons to exercise their claim before the Courts, having the same right those interested parties who could not be located or those who consider themselves harmed in their right, having all of them to resort to the corresponding declaratory procedure.

How can I file a declaration of intestate succession?

In order to file for the declaration of intestate heirs, interested parties should simply contact the Notary Office and request an appointment for this purpose, on the day and time that is most convenient for them.

On the agreed date and time, the interested parties must appear at the notary's office and provide the necessary documentation, which can be consulted in the necessary documentation section.

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