Intestate Succession in Spain: Notarial and Judicial Declaration of Heirs (2026)

Declaration of Intestate Heirs (Declaración de Herederos Abintestato): Concept and Applicable Cases

Intestate succession (sucesión intestada or abintestato) applies when the deceased dies without a valid will, when the will does not dispose of all assets, or when a testamentary heir dies before the testator or renounces the inheritance (Arts. 912–913 of the Código Civil [Spanish Civil Code, hereinafter CC]). In these cases, the law determines who inherits and in what proportion.

Reform Under Ley 15/2015 on Non-Contentious Jurisdiction

*Act 15/2015, of 2 July, on Non-Contentious Jurisdiction (Ley de la Jurisdicción Voluntaria, hereinafter LJV) transferred the declaration of intestate heirs from the courts to notaries*, except where the heirs are collateral relatives beyond the fourth degree or the State. Since 2015, the notarial procedure has been the standard route, with the judicial procedure reserved for residual cases.

Notarial Procedure (Arts. 55–56 LJV and Arts. 209–210 of the Reglamento Notarial [Notarial Regulations, hereinafter RN])

Notarial Jurisdiction

The competent notary is the one in the district of the last domicile or place of death of the deceased, or any notary in the district where most of the deceased's real estate assets are located. The parties may freely choose a notary within those territorial districts.

Parties Entitled to Initiate the Procedure

The declaration of intestate heirs may be requested by:

• Any presumptive heir under the rules of the CC
• The surviving spouse, even if not an heir (for the purpose of liquidating the marital community property regime, sociedad de gananciales)
• The creditors of the deceased, in exceptional cases, for debt collection purposes

Required Documentation

1. *National ID card (DNI) or foreigner's identity number (NIE*) of the applicant and the deceased
2. Death certificate of the deceased
3. Certificate from the Registro General de Actos de Última Voluntad* [General Register of Last Wills] (confirming the absence of a will, obtainable online through the Ministry of Justice, MJUS*)
4. *Family record book (Libro de Familia*) or birth/marriage certificates establishing the family relationship
5. If real estate is involved: land registry details
6. Notoriety deed (Acta de Notoriedad) signed by two witnesses acquainted with the family

1. The applicant appears before the notary and submits the required documentation
2. The notary verifies the relevant facts (family relationship, death, absence of a will)
3. A public notice (edicto)* is posted on the notice board of the municipal authority (Ayuntamiento*) of the deceased's last domicile for 30 days (although in 2023 the Supreme Court accepted the suppression of this requirement where the family relationship is indisputable)
4. Once the period has elapsed, the notary draws up the declaration of intestate heirs deed, identifying the heirs and their respective shares

Total timeline: 45–90 days in practice (including the public notice period and the wait for the certificate from the Register).

Orders of Intestate Succession (Arts. 930–956 CC)

The Código Civil establishes a priority order of succession: each group excludes the next.

1st Order: Descendants (Arts. 930–942 CC)

Children inherit in equal shares. If a child has predeceased the testator, their own descendants inherit by representation (por estirpes). Descendants take priority over all other relatives.

The surviving spouse is not an heir when there are descendants, but retains the right to the usufruct of one third of the estate (the tercio de mejora: the improvement third) (Art. 834 CC) as a forced share (legítima).

2nd Order: Ascendants (Arts. 943–948 CC)

If there are no descendants, the deceased's parents inherit in equal shares. If only one parent survives, they inherit the entire estate. If neither parent survives, the nearest ascendants in the next degree inherit.

The surviving spouse inherits alongside the ascendants and receives the usufruct of one half of the estate (Art. 837 CC).

3rd Order: Spouse (Art. 944 CC)

If there are neither descendants nor ascendants, the surviving spouse who has not been legally separated inherits full ownership of the entire estate. Unmarried partners (pareja de hecho) do NOT inherit under the general rules of common civil law (though they may inherit under the regional civil law systems ( derecho foral ) of certain autonomous communities, including Catalonia, Navarre, Aragon, and the Basque Country).

4th Order: Collateral Relatives up to the 4th Degree (Arts. 949–955 CC)

Siblings (2nd degree), nieces and nephews (3rd degree), aunts and uncles (3rd degree), first cousins (4th degree). Full siblings (hermanos de doble vínculo) inherit twice the share of half-siblings (hermanos de vínculo sencillo).

5th Order: The State (Art. 956 CC)

In the absence of all of the above, the State inherits (or, in territories with regional civil law, the relevant autonomous community). The assets are allocated to charitable or educational institutions.

Residual Judicial Procedure

The judicial procedure is retained for:

• Collateral relatives beyond the 4th degree
• Cases where the heir is the State
• Cases where there is a dispute between presumptive heirs

The matter is handled as a non-contentious jurisdiction proceeding (expediente de jurisdicción voluntaria) before the Tribunal de Instancia [Court of First Instance] of the deceased's last domicile (Art. 977 of the Ley de Enjuiciamiento Civil [Code of Civil Procedure, hereinafter LEC]).

Acceptance and Renunciation of the Inheritance

A declaration of intestate heirs does not automatically constitute acceptance. Heirs must either accept the inheritance (unconditionally or with benefit of inventory ( a beneficio de inventario) or renounce it within the period established by Art. 1004 CC ) or within any period set by the court at the request of an interested party (Art. 1005 CC).

*Benefit of inventory (beneficio de inventario)*: allows an heir to inherit without becoming personally liable for debts of the deceased exceeding the value of the inherited estate. This option is essential where the extent of the deceased's debts is uncertain.

Conclusion

Since 2015, the notarial declaration of intestate heirs has been the standard procedure for intestate succession among close relatives. A lawyer should advise on the applicable order of succession, the advisability of accepting with benefit of inventory, and any regional civil law (derecho foral) rules that may apply.

Lexiel allows you to search case law on intestate succession, time limits, and the rights of the surviving spouse, and to draft legal documents with verified citations.