Dying without a will in Spain: intestate succession
In Spain, around 60% of people die without having made a will, according to data from the General Council of Notaries. When this happens, the law determines who inherits and in what proportion. This process is called intestate succession or succession ab intestato.
The result does not always match what the person would have wanted. Making a will costs between 40 and 60 euros before a notary, but not making one can mean thousands of euros in additional procedures and distributions nobody expected.
Order of heirs under the Civil Code
Articles 930 to 958 of the Civil Code establish a strict order. Each group excludes the next: if there are heirs at one level, those at the lower level do not inherit.
1. Descendants (children, grandchildren)
Children inherit in equal shares (article 931). If a child has died first, their own children (the deceased's grandchildren) inherit their share by right of representation (article 934).
The surviving spouse does not inherit ownership but retains the usufruct of the improvement third (article 834). This means they have the right to use and receive the income from one third of the estate for life.
2. Ascendants (parents, grandparents)
If there are no descendants, the parents inherit in equal shares (article 935). If only one is alive, they inherit everything. If there are no parents but there are grandparents, the closest in degree inherit (article 940).
The surviving spouse retains the usufruct of half the estate (article 837) when concurring with ascendants.
3. Spouse
If there are neither descendants nor ascendants, the spouse inherits everything in full ownership (article 944). No declaration of heirs before a notary is needed; a deed of notoriety suffices.
Note: if there was legal or de facto separation, the spouse loses inheritance rights (article 945).
4. Collateral relatives (siblings, nephews, cousins)
If there are no descendants, ascendants or spouse, siblings inherit in equal shares (article 947). Half-siblings (sharing one parent) inherit half of what full siblings receive (article 949).
If there are no siblings, nephews inherit. Then cousins and other collateral relatives up to the fourth degree (article 954). Beyond the fourth degree, no inheritance right is recognised.
5. The State
If no relative within the fourth degree is found, the State inherits (article 956). The State must allocate one third of the estate to charitable institutions in the deceased's municipality, another third to provincial institutions and the last third to paying down public debt (article 958). In practice, vacant estates take years to resolve.
Declaration of heirs ab intestato
To distribute the estate without a will, a declaration of heirs ab intestato must first be obtained. This procedure determines who the legal heirs are.
Since the Voluntary Jurisdiction Act of 2015, this procedure is handled by a notary (not a judge) when the heirs are descendants, ascendants or a spouse. If the heirs are collateral relatives (siblings, nephews), it is also done before a notary since the reform.
Process
- Visit the notary of the deceased's last domicile (or the place of death, or where most of the assets are located).
- Provide: death certificate, last will certificate (confirming no will exists), birth certificate of the deceased, family book or birth certificates of the heirs.
- Statement from two witnesses who know the deceased's family and confirm who the closest relatives are.
- The notary draws up the deed of notoriety and, after 20 business days, issues the declaration of heirs.
Cost
The notary fee for a declaration of heirs ab intestato ranges from 200 to 400 euros, depending on complexity and number of heirs. If there is real estate, the cost of the partition deed is added.
Additional time
The declaration of heirs adds between 1 and 2 months to the inheritance process. This includes waiting for the last will certificate (15 business days after death), processing the deed and the 20-day period. If there had been a will, this step would be skipped entirely.
Autonomous communities with their own civil law
The Civil Code's succession order applies in common-law communities. But several regions have their own civil law with different rules:
Catalonia. Book Four of the Catalan Civil Code (Law 10/2008) establishes its own order. Without a will, descendants inherit, then the spouse or cohabitant (in full ownership, not usufruct), then ascendants. A stable cohabitant has the same rights as a spouse.
Aragon. The Aragonese Regional Law Code (Legislative Decree 1/2011) grants the spouse a usufruct over the entire estate (universal Aragonese widow's usufruct), which is broader than under the national Civil Code.
Navarra. The Compilation of Navarrese Regional Civil Law grants the spouse a fidelity usufruct over all the deceased's assets. It is the broadest usufruct across all Spanish civil legislations.
Basque Country. Law 5/2015 on Basque Civil Law has its own rules, including troncalidad: certain real estate can only be inherited by relatives from the family line the property came from.
How much not having a will costs
Making a will before a notary costs between 40 and 60 euros. Not making one can involve:
- Declaration of heirs: 200-400 euros.
- Longer processing: 1-2 additional months.
- Distribution that does not reflect the deceased's wishes.
- Possible family conflicts over the legal distribution.
- Civil partner without rights (in most common-law regions).
If you have assets, children, a partner or simply a preference about how your estate is distributed, a will is the cheapest and most effective document to guarantee it.
Make your will online
At Notaria Online you can make a will by video conference. The notary advises you on the clauses, drafts the document and signs it with you in a 30-45 minute session. We also handle inheritances when the death has already occurred.