Dying without a will is more common than people think. Some never get round to making one; others keep putting it off. Then the family asks the same question: if there is no will, who inherits? The answer is reassuring. The estate is not left in limbo and it does not pass automatically to the State. The law steps into the testator's shoes and says who is entitled to inherit.
This is called intestate succession or abintestato, and the procedure that sorts everything out is the declaration of heirs. Here is how it works.
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What it means to die without a will
When a person dies without a valid will, or when the will they left is void or does not dispose of all the assets, intestate succession opens. The Civil Code then sets an order of priority to decide who inherits. There is no choice here: the law presumes who the deceased would have wanted to leave their assets to and applies that criterion objectively.
A note: the common Civil Code applies in the Valencian Community. There is no separate Valencian law of succession. What the Constitutional Court struck down in 2016 was the Valencian law on matrimonial property, not a law on inheritance. So the rules below are those of the state Civil Code. Living here is not enough, though: they apply if the deceased had common civil status (vecindad civil común). If they were a foreign national, or had the civil status of a region with its own law, such as Catalonia or Aragon, another law may govern.
The Civil Code's legal order of succession
The law calls heirs in groups, in a strict order. You only move on to the next group when no one in the previous one is entitled to inherit:
1. Descendants
Children inherit first and, in their place, grandchildren and further descendants. Children inherit in equal shares. If one has predeceased, their share passes to their own children (the deceased's grandchildren).
2. Ascendants
If there are no descendants, the parents inherit and, failing them, the grandparents and further ascendants. When both parents are living, they inherit in halves.
3. The surviving spouse
In the absence of descendants and ascendants, the surviving spouse inherits, provided they were not legally or de facto separated at the time of death.
4. Siblings and other collateral relatives
If there is no spouse either, siblings and nephews and nieces inherit, and failing them the remaining collateral relatives up to the fourth degree (uncles, aunts, cousins). Beyond the fourth degree there is no longer any right to inherit through intestate succession.
When none of these persons remain, the inheritance ultimately passes to the State (or to the Autonomous Community, depending on the applicable rules), which allocates it to purposes of social interest.
The role of the surviving spouse
The surviving spouse is a case apart, because their position does not depend only on the order above. Even where there are descendants or ascendants, a spouse who was not separated always keeps one right: the usufruct of part of the inheritance. The exact share depends on who they inherit alongside.
Alongside children or descendants, the spouse is entitled to the usufruct of the third set aside for betterment (mejora). Alongside ascendants, the usufruct is wider. Only when there are neither descendants nor ascendants does the spouse inherit in full ownership. This ties in directly with the forced share (legítima) and the forced heirs, which sets the minimums the law reserves for certain relatives.
What the declaration of heirs is
The declaration of heirs is the official document that certifies who the legal heirs are when someone has died without a will. Without it you cannot take title to the assets or change the ownership of accounts or property. But you do not have to wait for it to meet the tax deadline: the tax can be filed with the documents available.
The notarial route: the deed of notoriety
When those called to inherit are descendants, ascendants or the surviving spouse, the declaration is handled by a notary through a deed of notoriety (acta de notoriedad). This is the most common route, and also the quickest and cheapest. The notary examines the documents, takes statements from witnesses and, after a processing period, declares who the heirs are.
Collateral relatives: also before a notary
When those who inherit are collateral relatives (siblings, nephews and nieces, uncles and aunts, cousins), the declaration is also made before a notary, with the same deed of notoriety. That has been the case since 2015: there is no longer any need to go to court. Only if there are no entitled relatives left and the State inherits does the Administration itself make the declaration.
Necessary documentation
To start the declaration of heirs you will generally need to gather these documents:
- Death certificate of the deceased.
- Certificate of last wills, which certifies that there is no will.
- Certificate of death-cover insurance contracts.
- National ID (DNI) of the deceased and of the heirs.
- Family record book or certificates proving the family relationship.
- Certificates of registration of residence (empadronamiento) of the deceased.
If you gather everything from the start, you avoid delays and the process moves a good deal faster.
Approximate deadlines
The death certificate can be requested straight away. The last wills and insurance certificates, from fifteen working days after the death. Through a notary, once all the documents are in, the deed of notoriety is usually completed in several weeks, because the law requires a minimum processing time. That minimum is 20 working days from the request to the notary and, if a notice has to be published in the BOE (Spain's Official Gazette), they count from the end of the month allowed for objections.
Having no will does not extend the tax deadlines by a single day. Inheritance Tax still has to be settled within six months of the death, even if the declaration of heirs is not yet finished. If you need more time, apply for an extension within the first five months to avoid surcharges.
What does NOT change compared with having a will
A very common mistake is to think that with no will the inheritance is cheaper or tax-exempt. It is not. With or without a will, the heirs have exactly the same tax obligations: they must pay Inheritance Tax in the Valencian Community and, when the estate includes urban property, the municipal capital gains tax (plusvalía) as well.
The only thing that changes is the preliminary step of establishing who inherits. And, as with any inheritance, those called always keep the right to accept or renounce the inheritance, a decision to think through carefully when there are debts.
At Equus Capital we handle inheritances for families in Valencia and take care of everything: requesting the certificates, the declaration of heirs, the partition and settling the taxes. First consultation free and with no obligation.
Frequently asked questions
Who inherits if there is no will and no children?
If there are no descendants, the parents and further ascendants inherit first. Failing them, the surviving spouse inherits, and failing them the siblings and further collateral relatives up to the fourth degree. Only when none of these relatives exist does the inheritance pass to the State.
How much does the declaration of heirs cost?
It is made before a notary by deed of notoriety, and the cost is governed by a fixed scale of notary charges. Since 2015 collateral relatives also go this way, without going to court. Roughly speaking, it is a moderate expense compared with the value of the inheritance.
Does the spouse inherit if there is no will?
Yes. Unless separated, the surviving spouse always retains the usufruct of a part of the inheritance, even when inheriting alongside children or ascendants. And when there are neither descendants nor ascendants, they inherit in full ownership, provided they were not legally or de facto separated.
What happens if no one claims the inheritance?
If no heirs with the right to inherit appear up to the fourth degree of kinship, the inheritance ultimately passes to the State or the Autonomous Community, which allocates it to purposes of social interest following the corresponding procedure.