Inheritance without a will – The declaration of heirs

OUR SPECIALIST INHERITANCE LAWYERS WILL PROCESS YOUR DECLARATION OF HEIRS IN A RAPID AND SAFE MANNER

INHERITANCE WITHOUT A WILL

  • When there is no will, the law establishes who the heirs are and a legal declaration of heirs must be issued in order to accept the inheritance.
 
  • The law defines the order of succession among relatives.
 
  • Our inheritance lawyers will draw up a declaration of heirs to enable you to accept the inheritance.

ORDER OF LEGAL SUCCESSION

Descendants

Spouse

Ascendants

Collateral relatives

Descendants

Ascendants

Spouse

Collateral relatives

When there is no will, a declaration of heirs must be issued. The declaration of intestate heirs has been the exclusive responsibility of notaries public since 2015, when Law 15/2015 of 02 July on Voluntary Jurisdiction removed the jurisdiction of the courts for cases entrusted to them involving the degree of kinship between the deceased and the heir.

Article 55 of the Notarial Law establishes that:

  1.  Those who consider themselves entitled to the intestate inheritance of a deceased person and are their descendant, ascendant, spouse or person united by an emotional relationship similar to marriage, or their collateral relative, may request a declaration of intestate heirs. This will be processed in a deed of notoriety authorised by a Notary Public licensed to operate in the district of the deceased´s last domicile or habitual residence, or where the majority of his/her assets were located, or in the place in which he/she died, provided this was in Spain, at the discretion of the applicant. You may also choose a Notary Public from a district adjacent to the aforementioned places. In the absence of all of the foregoing, the Notary Public in the applicant´s domicile will be entrusted with the procedure.
  2.  The procedure will be initiated at the request of any person with a legitimate interest, in the opinion of the Notary Public, and it will be processed in accordance with the provisions of this Law and the notarial regulations. Therefore, the declaration of intestate heirs will be processed in a deed of notoriety issued by a Notary Public authorised to act in the district in which the deceased was last domiciled or resided on a habitual basis, or in which the majority of his/her assets were located, or in the place in which he/she died, as long as this was in was in Spain, at the applicant’s choice.

 

Two witnesses are also required to attend to enable the notary public to draw up a deed declaring the status of heir.

Under normal circumstances, and once it has been signed and 20 business days have elapsed, the acceptance of the inheritance can begin.

  • – Death certificate
  • – A certificate proving that there is no will. This certificate is issued by the General Registry of Last Wills and Testaments.
  • – The National Identity Document of the deceased or legal registration certificate.
  • – The birth and/or death certificates of the deceased´s descendants.

The inheritance lawyers at Andreu & Asociados will be in charge of carrying out all the necessary procedures to issue the declaration of heirs, working together with the notary public to ensure everything is carried out in a timely manner with no delays that might be detrimental to the client.

Moreover, they will be in charge of obtaining the documentation you need in order to issue the declaration of heirs, thereby sparing you the respective paperwork and travel. Many different procedures need to be conducted in order to receive an inheritance, depending on whether or not the deceased has left a will. We at Andreu Asociados have specialist inheritance lawyers who will help you in every inheritance-related procedure. These lawyers will clarify your doubts regarding applying for a Certificate of Last Will and Testament, the declaration of heirs, the distribution of the inheritance, the payment of legitimes or the payment of taxes after accepting an inheritance, as failure to do so in the correct manner may give rise to additional tax costs.

Challenging a will

For a will to be declared null or voidable, the testator must have been suffering from cognitive impairment at the time of issuing it, or it must have been issued subject to deception, violence or serious intimidation, among other reasons.

The action for annulment can be exercised, once the succession process has been initiated, by anyone who may benefit from the declaration of annulment.

The action for the annulment of the will expires four years after the person entitled to exercise it knows or may reasonably know the cause of annulment.

Article 422-1 of the Civil Code of Catalonia regulates the challenge of wills, as transcribed below:

  1. A will that does not correspond to any of the types established by article 421-5 is void, as is any will issued that fails to meet the legal requirements of capacity and form and any will issued subject to deception, violence or serious intimidation.
  2. The absence of the indication or the erroneous indication of the place or date of the execution of the will that could affect the validity thereof is exempted if it can be proven in another manner. The absence of the indication of the time does not render the will null and void provided the testator has not issued another will on the same day.
  3. Wills that do not contain the institution of heir are void, unless they contain the appointment of a universal executor or are issued by a person subject to the law of Tortosa”.

 

Furthermore, the action for annulment is regulated in Article 422-3 of the Civil Code of Catalonia, transcribed as follows:

  1. “1. The action for annulment can be exercised, once the succession process has been initiated, by anyone who may benefit from the declaration of annulment.
  2. The action for the annulment of the will expires four years after the person entitled to exercise it knows or may reasonably know the cause of annulment.
  3. The action for annulment cannot be exercised by legitimate heirs who, knowing the possible cause of nullity, admit the validity of the will or the testamentary disposition after the death of the testator, execute them voluntarily or renounce the action.
  4. The action for annulment is transferable to the heirs, but it cannot be exercised by the creditors of the inheritance”.

In some cases the testator´s will has been changed in the last moments of his/her life by third parties, whereby the will is contrary to the testator´s wishes, leaving authentic heirs aside and naming people who have no rights.

In these cases, the law specifies that a fraudulent will can be annulled if a series of requirements are met. Inheritance lawyers will help you safeguard your interests against malicious third parties who have taken advantage of the deceased´s situation in order to benefit.

Find out about the possibility of making a claim and the steps to follow, as there is a deadline for challenging a will and the procedures must be conducted by a specialist.

FREQUENTLY ASKED QUESTIONS REGARDING INHERITANCE WITHOUT A WILL

The legal heirs must be appointed when there is no will; to do so, a Declaration of Heirs must be issued prior to accepting the inheritance.

If the person who has died without a will lived in Barcelona, the order of succession pursuant to the Civil Code of Catalonia will apply, that is; Descendants, Spouse, Ascendants, Collateral Relatives up to the fourth degree and finally, if none of these exist, the Regional Government of Catalonia will be entitled to receive the inheritance.

The assets to be inherited will be distributed in equal value among all those with the right to inherit to the same degree. However, the parties may agree upon on a different distribution in accordance with their interests.

The people entitled to an inheritance from a person subject to the civil laws of Catalonia in a substitute manner and in order of priority, are the descendants, the spouse, the ascendants and collateral relatives up to the fourth degree. Finally, if none of these exist, the Regional Government of Catalonia will be entitled to receive the inheritance. The spouse will come to an agreement with the descendants with regard to the usufruct.

When a person dies, the first thing you need to do is to check if he/she had a will. To do so, you will need to obtain a certificate of last will and testament, which reflects whether or not the person in question made an open will and, if so, which notary public issued it.

You will need to obtain a death certificate, a certificate of last will and testament and a life insurance certificate to begin the procedure. Once you have these documents, the declaration of heirs can be issued and you will be able to accept the inheritance once the legal term has elapsed.

In some circumstances, people who are not entitled to inherit can claim their rights to the inheritance. Extreme caution needs to be taken in such cases, as the aforementioned documents can be challenged right from the start of the succession dispute, including the declaration of heirs, which do not contain the reality of the inheritance.

For example: in the case of people who claim to be related to the deceased and who were unknown, or a person who claims rights as a de facto partner, you will need to determine if they were in a steady relationship at the time of death.

There is no exact time, as each inheritance differs, however, there are minimum deadlines to be complied with and taken into account, the first of which is 15 business days to be able to request a certificate of last will and testament, and the second of which is a period of one month from the date on which the declaration of heirs is signed until the notary public issues the certificate of notoriety.

Due to the fact that the deceased did not make a will while alive, all the costs involved in the declaration of heirs will be added to his/her inheritance. Moreover, due to the fact that the deceased did not engage in succession planning, the tax and distribution costs will often be greater than in the event succession planning had been carried out.

In an inheritance without a will, those eligible to inherit will have the same proportion of rights to the inheritance as the other heirs. It may happen that the spouse and the descendants are both intestate heirs; in this special case, the spouse will have the right to the usufruct of the surviving spouse.
Moreover, the intestate heirs will be liable for all the deceased´s debts and obligations, although they may be limited to the benefit of inventory provided the legal requirements are met and the procedure is processed within the first 6 months after death.

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