What is a declaration of heirs?
A declaration of heirs —also known as a declaration of intestate heirs— is the procedure used to officially determine who is entitled to inherit from a person who has died without a will, or whose will is null, invalid or ineffective. It is an essential preliminary step before the inheritance can be accepted and distributed.
Contents
When is it necessary?
A declaration of heirs is required when intestate succession applies under Articles 912 and following of the Spanish Civil Code. This mainly occurs when:
- The person dies without having made a will.
- The existing will is null or has lost its validity.
- The appointed heir has died before the testator, renounces the inheritance or is incapable of inheriting, and there is no substitute heir.
Who can request it and before whom?
Since the reform introduced by the Voluntary Jurisdiction Act —Law 15/2015— the declaration of heirs is processed before a notary through a notarial deed of notoriety, regulated in Articles 55 and 56 of the Notarial Act. Judicial intervention is no longer necessary in these cases.
It may be requested by those who consider themselves entitled to the inheritance: descendants, ascendants, the spouse or partner, and collateral relatives up to the fourth degree. As a general rule, the competent notary is the one corresponding to the deceased person’s last domicile or habitual residence.
Necessary documentation
To initiate the notarial deed, the following documents are usually required, among others:
- Death certificate of the deceased person.
- Certificate from the Register of Last Wills, proving the absence of a valid will.
- Marriage certificate and birth certificates of those called to inherit, or the family record book.
- National identity document of the deceased person and of the applicants.
In addition, two witnesses who know the family must appear and testify about the deceased person’s personal and family circumstances.
Order of intestate heirs
The Spanish Civil Code establishes the order of succession: first, descendants (Article 930); in their absence, ascendants (Article 935); then the surviving spouse (Article 944); next, collateral relatives up to the fourth degree (Articles 946 and following); and, finally, the State or the relevant Autonomous Community (Article 956).
| Order | Persons called to inherit | Legal reference |
|---|---|---|
| 1st | Descendants | Article 930 of the Spanish Civil Code |
| 2nd | Ascendants | Article 935 of the Spanish Civil Code |
| 3rd | Surviving spouse | Article 944 of the Spanish Civil Code |
| 4th | Collateral relatives up to the fourth degree | Articles 946 and following of the Spanish Civil Code |
| 5th | State or Autonomous Community | Article 956 of the Spanish Civil Code |
Time limits and effects
After the application is submitted, the law provides for a period of twenty working days before the notary may close the deed. Once notoriety has been declared, the deed proves who the heirs are and enables them to accept the inheritance, distribute the assets and complete the corresponding succession and tax procedures.
For practical information on successions with international elements, you can read our article about the European Certificate of Succession.