What it means to die without a will
When a person dies without having made a will, this does not mean that their assets are left ownerless or that the family can distribute them freely. In such cases, what is known as intestate succession or succession ab intestato commences. In other words, the law will determine which people are entitled to inherit and in what order.
In Mallorca, as with any inheritance, the first step is to check whether or not a will actually exists. To do this, you must request a certificate of last will and testament, which states whether the deceased made a will and before which notary. Only when this certificate confirms that there is no will does the process of declaring the heirs begin.
An inheritance without a will cannot be distributed by informal agreement amongst family members: first, the heirs must be legally identified.
The declaration of heirs
The declaration of heirs is the procedure by which the persons entitled to inherit are identified when there is no will. It is normally processed before a notary and requires the submission of documentation proving the death, the family relationship and the absence of a will.
This procedure is particularly important because, in a sense, it fulfils the role that a will would otherwise have played. The notarial document does not, in itself, distribute all the assets, but it does declare who the legal heirs are. Following this declaration, the process can move on to the acceptance and distribution of the inheritance.
Documents usually required to initiate the process
- Full death certificate.
- Certificate of last will and testament.
- National identity card or other identification document of the interested parties.
- Family register or certificates from the Civil Registry proving kinship.
- Marriage certificate, if applicable.
- Details of two witnesses where required for the file.
- Initial information regarding assets, bank accounts or property.
Who inherits if there is no will
The order of succession depends on the applicable legislation and the specific family circumstances. Generally speaking, descendants take priority. If there are children, they will inherit, without prejudice to any rights that may accrue to the surviving spouse.
If there are no descendants, ascendants, the spouse, siblings, nephews and nieces or other relatives may come into play, following the relevant legal order of succession. The situation can become complicated when there are children from different relationships, unmarried couples, unformalised separations or relatives residing outside Spain.
For this reason, before proceeding to accept the inheritance, it is advisable to carefully review the family structure and the available documentation. An error in identifying the heirs could block the transfer of the inheritance or lead to subsequent disputes.
The difference between being an heir and distributing the estate
One of the most common misconceptions is to think that the declaration of heirs automatically distributes the assets. This is not the case. This document determines who is entitled to inherit, but the inheritance must then be accepted, an inventory of assets and debts drawn up, the estate valued, and the specific assets allocated to each heir.
The acceptance and allocation of the inheritance are usually formalised in a public deed. This document sets out what assets exist and how they are to be distributed. If there is property, the allocation will subsequently need to be registered with the relevant Land Registry. If there are bank accounts, banks usually require probate and tax documentation before releasing the funds.
Taxes and deadlines for an inheritance without a will
The absence of a will does not remove tax obligations. The heirs must settle the relevant taxes, particularly Inheritance and Gift Tax and, if there is urban property, the municipal capital gains tax.
The general deadline for settling Inheritance Tax is six months from the date of death. An extension may be requested within the statutory period, but it is not advisable to wait until the last minute. In inheritances without a will, the process of determining the heirs may take up part of this time, so acting swiftly and methodically is particularly important.
Common mistakes in inheritances without a will
- Believing that family members can divide up the assets without going through a notary.
- Failing to request the certificate of last will and testament.
- Confusing a civil partner with a spouse for inheritance purposes.
- Failing to correctly identify all the heirs.
- Failing to take account of debts or encumbrances before accepting the inheritance.
- Missing tax deadlines.
- Signing private agreements without assessing their legal consequences.
What happens if there is a disagreement amongst heirs
Inheritances without a will can lead to family tensions, particularly when there is no written will from the deceased to guide the distribution. Disagreements may arise over the value of the assets, the use of a family home, the sale of a property or compensation between heirs.
When all heirs are in agreement, the process can proceed reasonably smoothly. If there is no agreement, it may be necessary to seek negotiated solutions, professional intervention or, as a last resort, to resort to legal proceedings to divide the estate.
The absence of a will does not prevent the estate from being settled, but it does make it all the more important to organise the steps carefully and document every decision.
The importance of seeking advice from the outset
In an intestate inheritance, legal advice helps to avoid mistakes from the very start. A solicitor can review the documentation, provide guidance on the legal order of heirs, coordinate the notarial declaration, analyse debts, prepare the acceptance of the inheritance and anticipate potential conflicts.
It is also useful when there is property in Mallorca, heirs living off the island, relatives abroad or uncertainties regarding the applicable legislation. Each of these circumstances can alter the approach to the case and the recommended steps.
Autonell Abogados: Inheritance in Mallorca
At Autonell Abogados, we advise on inheritances with and without a will, declarations of heirs, the division of an estate and disputes between family members. Our office in Inca, Mallorca, examines each case carefully, taking into account the documentation, the family situation and the assets involved.
If a loved one has passed away without a will and you need to know what steps to take, we can help you sort out the situation before signing any documents or making any commitments. A preliminary review can prevent tax errors, registration issues and family disputes that are difficult to resolve later on.
Please note: this article is for information purposes only and is not a substitute for personalised legal advice. Each inheritance must be analysed according to its specific circumstances.
