Who are the heirs when there is no will?

When someone dies, it’s common to review everything related to the inheritance in their will, to learn the details of succession and other related issues.

But what happens if there is no will?

Intestate succession

Intestate succession occurs when a death occurs without a will.

Article 912 of the Civil Code states that this type of succession occurs in the following cases:

When the will does not exist, it is null or invalid.
When the will exists, but no heirs to its assets are appointed.
When the condition established by the testator does not exist, if the heir dies or repudiates the inheritance.
When the established heir cannot succeed.

To receive an inheritance without a will, a declaration of intestate heirship must be made. The inheritance must then be awarded before a notary.

Differences between forced heirs and heirs when there is no will

Although they may seem the same, there are important differences between forced heirs and heirs who succeed when there is no will.

Forced heirs have the right to receive a share of the inheritance whether or not there is a will.

On the other hand, the heirs Ab Intestato, legal or legitimate, are determined by the Law when there is no will.

In conclusion, there will be a forced heir or legitimate heir in every succession, regardless of whether there is a will or not, while legal heirs only occur when there is no will.

Heirs when there is no will

As we have said, when there is no will, the person who will receive the inheritance is legally established.

There is a general order, although there may be some differences in the Autonomous Communities.

Children and descendants

First in line to receive the assets and rights are the children or descendants of the deceased or deceased.

Children inherit per capita, that is, in equal shares each. If grandchildren inherit, they do so by lineage, that is, in equal shares, dividing what would have corresponded to their father or mother.

If all the children have died and only the grandchildren inherit, they inherit by lineage.

If there is a widow or widower, he or she has the right to the usufruct of the property in the third of the improvement, which is equivalent to one third of the inheritance.

Parents and ancestors

If the deceased has no children or grandchildren, the inheritance will go equally to the ascendants, that is, the father and mother. If, at the time of death, only one parent is alive, they inherit the entire inheritance, not just half.

When neither parent is alive, the inheritance is received by the grandparents, both from the paternal and maternal lines, in equal parts.

If there is a widow or widower of the deceased, he or she will receive a usufruct equivalent to half of the inheritance.

Spouse

If there are no ascendants or descendants in the line of succession, the widowed spouse has the right to the inheritance.

To be eligible for inheritance, you usually need to be married. As a general rule, a cohabiting partner or common-law partner without a will is not eligible. There are exceptions in some Autonomous Communities.

Siblings

If there are none of the relatives we have named above, the inheritance is received by the deceased’s siblings in equal parts, that is, per capita.

If the brother dies before receiving his inheritance, the nephews inherit it by lineage, so they receive the part of the inheritance corresponding to their father and divide it equally among themselves.

The State

If there is no heir, the State will receive the inheritance. It may also be the Autonomous Community where the deceased resided, as is established in many of them.

The best way to avoid all kinds of problems with successions, heirs, and the like is to make a will and include all the necessary information in it.

How to know if there is a will

Once 15 days have passed since the date of death, a Certificate of Last Will and Testament must be requested by completing the official form provided and accompanying it with a death certificate and proof of payment of a fee.

The application can be submitted by any person who believes they have the right to collect part of the inheritance.

It can be submitted digitally through the Ministry of Justice’s Electronic Office platform, or in person or by mail to any Territorial Office of the Ministry of Justice.

The application can also be processed at notary offices. When a person dies without a will, a declaration of heirs must be made to determine whether the assets will go to the children, parents, spouse, siblings, or the state. To determine whether a will exists, a Certificate of Last Will and Testament must be requested.

Further information

This article is part of our service Inheritance in Spain. Visit this section where you will find all the useful information on this topic, including a complete guide on Inheritance in Spain with a non-resident, expat or foreigner.

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