Inheritance without a will: Learn how it is distributed and the procedure
Although the most advisable thing is to make a will, it may happen that a person dies without having done so. In this case, the heirs ask themselves the question of how to process an inheritance without a will. The first thing to bear in mind is that the fact that the deceased person did not make a will does not prevent their heirs from receiving their assets.
And what if the deceased has no descendants or ascendants? Keep reading to learn about all the scenarios!
Distribution of inheritances without a will
When it comes to an inheritance without a will, it is the law that determines who the heirs of the deceased are, as well as the order of succession. These people are called legal or intestate heirs, who should not be confused with legitimate heirs. This is the order of succession for an inheritance without a will at the national level, although there are variations in some autonomous communities. Afterwards, we will discuss inheritances without a will in Catalonia.
This is the order to succeed without a will under Common Law according to articles 930 and following of the Civil Code:
- The descendants: firstly, the children would inherit in equal parts. If there are deceased children with descendants, the descendants of the deceased child will receive what corresponded to the deceased. If there is a surviving spouse of the deceased, they will receive the usufruct of one third of the inheritance.
- The ascendants: in the absence of descendants, the ascendants inherit. The father and mother inherit in equal parts and if only one is alive, the one who is alive inherits everything. If there is a surviving spouse of the deceased without a will, they will receive the usufruct of half of the inheritance.
- The surviving spouse: if there are no descendants or ascendants, the surviving spouse of the deceased without a will will inherit the entire estate, provided there was no separation at the time of death.
- The collaterals: in the absence of descendants, ascendants and surviving spouse of the deceased, the collateral relatives inherit. Firstly, the siblings and the children of the deceased’s siblings inherit. If there is a living sibling, the inheritance is divided by representation, so that each living sibling of the deceased will receive the same as all the children of the deceased sibling before the death of the person producing the inheritance. If only nephews are alive, they all inherit in equal parts and not by representation.
- In the absence of all the above persons, the State will inherit.
Taxes on Inheritances without a Will
The procedures in inheritance without a will begin by gathering a series of documents: death certificate, certificate of last wills, and life insurance certificate. These documents are often provided by the funeral home and it is possible to obtain all of them from a notary office such as JLA Notarios.
Since there is no will, it is necessary to have a declaration of intestate heirs before a Notary. This declaration must be signed at the Notary by any interested party in the inheritance and it is necessary for two witnesses who are not interested in the inheritance to attend. Within 20 working days from the initial request, the notary completes the Act of Declaration of intestate heirs. Once the declaration of intestate heirs has been made, to acquire the assets that the deceased had, it will also be necessary to formalise a deed of acceptance and allocation of inheritance before the Notary.
From the moment the inheritance is accepted, the heirs have a period of six months, extendable, to pay the Inheritance Tax. If they exceed the deadline, they must pay late payment interest, and could even incur a fine or sanction. In the most extreme case, they could face accusations of tax fraud against the Tax Agency. It is very important to keep these deadlines in mind.
Intestate inheritances in Catalonia
The distribution of inheritances without a will in Catalonia is different. The order of succession is different, because after the descendants it is not the ascendants, but the spouse or de facto partner. Thus, in Catalonia the order of succession would be as follows according to articles 442-1 of the Civil Code of Catalonia and following:
- The descendants: in Catalonia, the first to inherit would be the children in equal parts and if any child is deceased, what would correspond to them is divided among their children. If the surviving spouse or cohabiting partner is present, they would receive the universal usufruct of the entire inheritance; however, they may choose to change this universal usufruct for a quarter of the inheritance in ownership plus the usufruct of the habitual residence (442-5).
- The surviving spouse or cohabitant: in the absence of descendants of the deceased, the spouse or partner receives everything. If there are living ascendants of the deceased, they would have the right to the legitimate portion which would fall on a quarter of the inheritance.
- The ascendants: The parents in equal parts and if there is only one, the entirety of the inheritance. In the absence of parents, the ascendants in two halves, one for the paternal line and the other for the maternal line and, within these lines, in equal parts.
- The collaterals: in the absence of the previous relatives, the siblings inherit per capita (in equal parts) and if any sibling was deceased, their lineage (their position) is occupied by their children in equal parts. If there are no living siblings of the deceased, the closest relatives up to the fourth degree inherit in equal parts.
- The Generalitat of Catalonia: in the absence of the aforementioned relatives, the Generalitat of Catalonia would be declared heir.
In Catalonia, the declaration of intestate heirs must be made before a Notary and it is necessary that two witnesses appear. They attest to the relationship between the deceased and the interested parties. Afterwards, to acquire the assets that the deceased had, it is necessary to grant an inheritance deed before a notary.
This is the most relevant information you should know about how to process an inheritance without a will. If you are looking for a trustworthy notary office in Barcelona, we invite you to get in touch with JLA Notarios. You can do so comfortably through our email bcn@jlanotarios.com or through the contact form on our website. We offer a wide range of Services in Wills and Inheritances to assist you with everything you need.
If you need more information or want to learn in depth how to process an inheritance, you can consult the following link:
