When a person dies without a will and, in addition, no one clearly identifies the relatives entitled to inherit, the situation does not remain in a legal “limbo”.
In Spain there is a very specific procedure to verify first if there really is no will, then who would be called to the intestate succession and only if no person with a better right appears, so that the Administration can be declared heir.
That is the central idea that should be understood from the beginning: the fact that there are no known heirs does not yet mean that there are no heirs.
The State's own property regulations stipulate that, when an inheritance without known heirs ends up affecting the Administration, the regulations must be read in conjunction with the Civil Code and, where applicable, with the applicable regional or special law.
What does it mean that there is no will and no known heirs?
From a legal point of view, the intestate succession It is opened, among other circumstances, when someone dies without a willwith a will null or with a will that No. llega a produce effects Regarding the entire inheritance. In other words, it is not enough for the family to believe that there is no will; it must be formally proven.
And something similar happens with the heirsThe fact that no one appears in the first days or weeks does not authorize the distribution of assets, the occupation of real estate, or the disposal of accounts as if the inheritance had no owner.
The next step is to reconstruct the legal position of the deceased:
- Your identity.
- Your last address or usual residence.
- Your marital status.
- Their relationship.
- Nationality.
- Civil residence.
La Notary Law It gives the notary the power to conduct tests and request assistance from registries, public authorities and consulates.
What documents should be requested first when someone dies without a will?
The orderly management of an inheritance begins with two essential documents.
The first is death certificate, issued by the Civil Registry, which certifies:
- Death.
- Date.
- Place where it occurred.
The second is the certificate of last will and testamentThis certificate reveals whether the person made a will and before which notary. The Ministry of Justice also explains that this second certificate cannot be requested until certain periods have passed. fifteen business days since his death.
If the certificate of last will and testament proves that there is no willor if, despite its existence, an authentic document or a final resolution allows us to conclude that intestate succession is totally or partially applicable, the next step is to promote the declaration of intestate heirs.
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Who inherits if there is no will in Spain
Intestate succession corresponds first to the decendentsIf there are none, they inherit the ascendants.
If there are neither descendants nor ascendants, the heir inherits surviving spouse before collateral relatives.
Then they come in hermanos and children of siblings with preference over other collateral relatives. And, in the absence of a spouse, siblings, nephews, and other collateral relatives, the law extends the call only up to the fourth gradeBeyond that limit there is no longer a right to inherit intestate.
If there is no person with a right within that scheme, the inheritance passes to the beneficiary. State.
For example, one cannot simply jump to distant cousins or the government just because one cannot locate immediate family members. Nor is family rumors sufficient. Kinship must be proven, as well as the absence of individuals with a stronger legal claim.
How does the declaration of heirs work when no one appears clearly?
The declaration of intestate heirs can be requested by whoever has a legitimate interest, and the request must identify the persons who consider themselves called to the inheritance, accompanying the documentation of kinship, the identity and address of the deceased and proof that he died without an effective succession title.
The law also requires information on Civil Registry y of the General Registry of Last Wills and Testaments, along with witnesses who confirm that the deceased died without a valid disposition and that the designated persons are his only heirs.
When The identity or address of potential interested parties is unknown.The notary can request information from registries, public authorities and consulates, and if he still cannot locate them, he must publicize the file in the BOE and on the notice boards of the town halls related to the last address, the place of death or where most of the properties are located.
From that publication onwards, any interested party may appear, make allegations or submit documents during a month.
What happens if, after the search, no heir appears?
If they pass two months From the summons of the interested parties without anyone appearing, or if those who appear are considered without right and the notary understands that there is no person with the right to be summoned, the law orders that a copy of the file be sent to the Delegation of Economy and Finance competent to assess the administrative declaration of heir.
The Administration does not become an heir simply by inertia. 33 / 2003 It requires a specific procedure; it can be initiated:
- Ex officio.
- Due to a complaint.
- Through legally required communications.
It is published free of charge in the BOE and, when the General State Administration acts, also in the ministerial website The corresponding notices will also be posted on the municipal notice boards. During this process, any interested party may submit allegations or documentation.
If it is finally declared intestate estate administrationThe acceptance is understood to be made with the benefit of inventory. Afterwards, the heir may take possession of the assets, incorporate any assets discovered subsequently into the estate, and proceed with the liquidation.
The Civil Code provides that, once this liquidation has been made, the State deposits the result into the Public treasure, with the legally designated destination for part of the assets; and the patrimonial law adds that certain assets may be excluded from the liquidation if it is convenient to preserve them for public purposes.
What changes if there are assets or family members abroad?
Herein lies the truly international aspect of the problem. In successions with cross-border elements within the European framework, the general rule of Regulation (EU) 650 / 2012 The law applicable to the entire succession is that of the State of the deceased's habitual residence at the time of death, and that the courts of that State are, in principle, competent to hear the entire succession.
However, the Regulation itself allows a person to have chosen during their lifetime the law of their nationality to govern their succession.
This means that an inheritance involving a property in Spain cannot always be resolved solely under Spanish law if the deceased resided habitually in another country, and it also means that locating heirs may require actions outside of Spain.
La Notary Law This is reflected when he authorizes the notary to investigate nationality, civil domicile and, where applicable, applicable foreign law, in addition to seeking help from consular authorities.
Furthermore, when the heir has been determined and that status needs to be asserted in another Member State, the Regulation creates the European Succession Certificate, designed precisely so that heirs or administrators of the estate can prove their status and exercise their rights in another country of the Union without unnecessarily duplicating national procedures.
Conclusion.
When there is no will and no known heirs appear, a probate investigation must be opened: formally confirming the non-existence of a will, establishing the legal order of succession, reconstructing family relationships, giving a hearing to potential interested parties, and reviewing whether there is an international component that changes the jurisdiction or the applicable law.
Only when all else fails does the Administration come into play as the intestate heir.
FAQs
Yes. The Notary Law allows the deed to be initiated at the request of any person with a legitimate interest, at the notary's discretion, although it must later be proven who the actual heirs are.
The law itself reserves the right to go to court for those who have not proven their entitlement or who could not be located. And, if the inheritance has already been declared in favor of the Administration, those who consider themselves harmed may exercise the relevant civil actions, after first filing an administrative claim.
Under common civil law, if there is no spouse, siblings, or children of siblings, other collateral relatives up to the fourth degree may inherit. Beyond that degree, the right to inherit intestate does not extend.
No. An administrative declaration of intestate heirship is required, within a procedure involving official publication and the possibility of appeals. Only then can the Administration take possession and settle the estate.
In the EU, the general rule refers to the habitual residence of the deceased at the time of death, unless the national law is chosen, and it may be necessary to use instruments such as the European Certificate of Succession to prove rights in another Member State.
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