Dying without a will is more common than people think. Many never get around to making one; others put it off indefinitely. When this happens, the family faces an immediate question: if there is no will, who inherits? The answer is reassuring in its essentials, the inheritance is not left in limbo nor does it automatically pass to the State. Quite simply, it is the law that takes the place of the testator and establishes who has the right to inherit.
That scenario is known as intestate succession or abintestato, and the procedure that puts everything in order is the declaration of heirs. Let us look at how it works.
What it means to die without a will
When a person dies without having left a valid will, or when the will they left is void or does not dispose of all the assets, intestate succession is opened. In these cases, the Civil Code establishes an order of priority to determine who inherits. There is no freedom of choice: the law presumes to whom the deceased would have wanted to leave their assets and applies that criterion objectively.
It is worth recalling that the common Civil Code applies in the Valencian Community. The attempt to revive a distinct Valencian regional civil law on succession was struck down by the Constitutional Court in 2016, so the rules described below are those of the state Civil Code, in force throughout the Valencian Community.
The Civil Code's legal order of succession
The law calls heirs to inherit in groups, following a strict order. One only moves on to the next group when there is no one in the previous group with the right 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 deserves a separate mention, because their position does not depend solely on the order above. Even where there are descendants or ascendants, the spouse always retains one right: the usufruct of a part of the inheritance. The specific share varies according to whom they inherit alongside.
Where they inherit alongside children or descendants, the spouse is entitled to the usufruct of the third set aside for the betterment. Where they inherit alongside ascendants, the usufruct is wider. And only when there are neither descendants nor ascendants does the spouse inherit in full ownership. This right connects 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 of a person who has died without a will are. Without it, it is not possible to award the assets to oneself, change the ownership of accounts or property, or settle the taxes. It is the necessary preliminary step to any procedure concerning the inheritance.
The notarial route: the deed of notoriety
When those called to inherit are descendants, ascendants or the surviving spouse, the declaration is processed before a notary by means of a deed of notoriety. This is the most usual, swift and economical route. The notary examines the documentation, takes the declaration of witnesses and, after a processing period, declares who the heirs are.
The judicial route: collateral relatives
When those who inherit are collateral relatives (siblings, nephews and nieces, uncles and aunts, cousins), the declaration cannot in every case be made before a notary by the same route and usually requires a judicial procedure. This path is longer and requires the intervention of the court.
Necessary documentation
To start the declaration of heirs it is generally advisable to gather the following documentation:
- 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.
Gathering this documentation in full from the outset avoids delays and considerably speeds up the whole process.
Approximate deadlines
The death, last wills and insurance certificates can be requested from the fifteenth working day following the death. By the notarial route, once all the documentation has been submitted, the deed of notoriety is usually finalised within an approximate period of several weeks, since the law requires a minimum processing time. The judicial route is appreciably slower and may drag on for months.
The absence of a will does not extend the tax deadlines by a single day. The deadline to settle the Inheritance Tax remains six months from the death, even if the declaration of heirs is not yet complete. If necessary, it is advisable to request an extension within the first five months in order to avoid surcharges.
What does NOT change compared with having a will
A very common mistake is to think that, because there is no will, the inheritance is cheaper or exempt from taxes. This is not so. With or without a will, the heirs must meet exactly the same tax obligations: they must pay the Inheritance Tax in the Valencian Community and, when the inheritance includes urban property, the municipal capital gains tax (plusvalía) as well.
The only thing that changes is the preliminary step to determine who inherits. And, as in any inheritance, those called always retain the right to accept or renounce the inheritance, a decision worth weighing carefully when debts exist.
At Equus Capital we accompany families in Valencia throughout the whole process, from requesting the certificates and the declaration of heirs to the partition and settlement of 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?
The cost depends on the route. The notarial declaration by deed of notoriety is the most economical and is governed by a fixed tariff. The judicial route, reserved for collateral relatives, is more costly owing to the intervention of the court. In approximate terms, the notarial route represents a moderate expense relative to the value of the inheritance.
Does the spouse inherit if there is no will?
Yes. 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.