Dying Without a Will in Spain: What Happens to Your Property

When there is no will, the law writes one for you

Spanish lawyers call it sucesión intestada or ab intestato. If you die without a valid will, or the will does not cover part of your estate, the law fills the gap with a fixed order of heirs. You do not get a say in it and neither do your relatives. The rules do not try to guess what you would have wanted. They apply a family tree.

For many people that is acceptable, particularly when the family is simple and everyone gets along. The trouble starts with the cases that are not simple: second marriages, children from different relationships, unmarried partners and relatives in several countries. Those are also the households most likely to own a home in Spain, which is why this article exists. Our blog on making a will in Spain shows the alternative.

The order of heirs

Under the common regime of the Código Civil the order runs like this. First come the descendants, meaning children and, if a child has died, that child's own children. If there are no descendants, the parents and other ascendants inherit. If there are neither, the surviving spouse inherits. After that come collateral relatives, such as siblings, nephews and nieces, up to the fourth degree. If no relative within that range exists, the State becomes the heir.

The spouse deserves a separate note. Even when there are children, a surviving spouse who was not legally separated at the time of death keeps a usufruct over part of the estate, which is a right to use and benefit from property for life, not full ownership. In a family with children from earlier relationships, that can mean the spouse lives in the home while the children are the owners, with all the practical friction that follows. Several regions have their own rules that change the picture, so the order above is a starting point and not the final word.

Stepchildren and unmarried partners are not heirs by default

This surprises people more than any other rule. A stepchild is not a descendant, and an unmarried partner is not a spouse. Without a will, neither inherits under the common order, however close the relationship was. Some regions give registered partners rights similar to spouses, but the details differ and a registration does not always cover everything. If you want a partner or stepchildren to receive anything, the realistic route is a will.

The declaración de herederos

Heirs cannot simply walk into the property registry and ask for the house. They first need a document that declares who the heirs are. That document is the declaración de herederos. For close relatives, meaning descendants, ascendants and the spouse, it is generally handled by a notary, who reviews the death certificate, the certificate of last wills, proof of family ties and identity documents and then records who the heirs are. For more distant relatives the process often becomes slower and, in some cases, involves the courts.

On timing, think in months rather than weeks for anything beyond the simplest case. A notarial route for direct heirs can take a few weeks for the declaration itself, and the whole process including tax filings often runs to several months. Where distant relatives or disputes are involved, it can stretch well beyond a year. Those are indicative figures and not promises, because a lot depends on the notary, the region and how complete the family paperwork is.

The certificate that comes first

Before anything else, the heirs request a certificado de últimas voluntades from the Registro General de Actos de Última Voluntad, which belongs to the Ministerio de Justicia. It can be requested only after fifteen working days have passed since the death. It tells the family whether a will exists and which notary holds it. If there is none, the certificate is what allows the declaración de herederos to go ahead. If there is a will after all, the whole process changes direction, which is why nobody should skip this step.

If you live in Spain, Spanish intestacy rules are the default

The EU Succession Regulation says the law of your habitual residence at death governs your whole estate. If you live in Spain, Spanish intestacy rules therefore apply to your worldwide assets unless you chose another law in a will. A Dutch or German family who assumes that their home rules will operate quietly in the background can find the Spanish order of heirs and the spouse's usufruct taking over instead. We explain the mechanism in a separate article on the EU Succession Regulation 650/2012.

Foreign families also meet the document chain. Birth and marriage certificates from abroad used to prove family ties usually need an apostille and a sworn translation. When the heirs live in different countries, gathering those papers is often the slowest part of the whole process.

Tax does not wait for the declaration

One trap deserves its own heading. The deadline to file the inheritance tax return is six months from the date of death, and it can usually be extended by a further six months if you ask in time. It runs from the death, not from the day the declaración de herederos is finished. Families who wait for the paperwork to be complete before thinking about tax can lose months of the deadline before they start. How much tax is due depends on the region and the relationship, as our pages on inheritance and gift tax in Spain and inheritance tax by region explain.

A second local charge arises if the heirs later sell the home. The municipal capital gains charge is covered in plusvalía municipal on inherited and sold property, and the practical side of selling in selling an inherited property in Spain. Until the heirs are registered at the Registro de la Propiedad in their own names, a sale cannot go ahead.

Why planning is cheaper than the default

The default is not cruel, and many families go through it without drama. But it is slower, it exposes the family to document hunting abroad and it removes every choice you could have made. A will lets you decide who inherits, protect a partner, nominate a person to carry out your wishes and sometimes avoid the more distant relatives. It also gives the notary a clear text to work from, which usually shortens the time between a death and the registration of the house.

There is an honest caveat. Spanish succession law varies by region, the numbers on timing and cost vary by notary and by case, and nothing in this article is advice for your specific situation. What we can say with confidence is that the families who arrive at a Spanish notary with a clear will almost always have an easier time than the families who arrive with nothing and a stack of foreign certificates. If that is not the position you want your family to be in, the next step is to talk to a notary and, for cross border cases, an adviser who knows both systems.