Inheritance with or without a will: How does it work?

When we ask ourselves where an inheritance with a will is processed, the answer is clear: at a notary's office, of your choice, as we have already mentioned in another of our articles:

It is possible that the will was granted at a different notary’s office from the one where you now wish to sign, and that the Notary may have moved, retired, or even passed away. Despite this, it is necessary to obtain an authorised copy of the will in order to, logically, know the deceased’s wishes, which in American films is always called “opening the will”, although in Spain it is a little different. But, how can I obtain the authorised copy of the will? It’s very simple, there are three possibilities:

1. Go to the notary’s office where it was granted, request it, and take it to your trusted Notary.
2. Request the copy from the corresponding College of Notaries. This option only applies when the will was granted more than 25 years ago.
3. Go to your trusted notary’s office, where you will sign the inheritance, and ask them to manage it. In this case, at JLA Notarios, we manage obtaining the will through the internal communication system between notaries, at no management cost to the client.

This document may be requested by any direct interested party or by a person authorised by the interested party to do so properly, paying the cost of the copy of the will which, although not very high, will depend on its age.

Once you have this document, it is time to ask how to process an inheritance. In this regard, it is necessary to present the inheritance deed at the various banks and registries. The aim of all this is to modify the ownership of the assets in question. For more information, we recommend consulting the guide to processing an inheritance or contacting us.

To learn more about the will and what it is for, we recommend consulting this other blog article:

Now then, beyond what has been said so far, we know, as Notaries in Barcelona, that there is a case more complicated than the previous one. We are referring to the situation in which there is no will granted by the deceased, in which case the will is replaced, as a succession title, by the declaration of intestate heirs. This declaration determines who has the right to the inheritance. At first, it might seem that this is a difficult situation to resolve. However, the truth is that, if you turn to good professionals, everything can be quickly resolved.

But who can carry out the declaration of intestate heirs? Regarding who can initiate the declaration, article 55 of the Notarial Law states that “those who consider themselves entitled to succeed intestate a deceased person and are their descendants, ascendants, spouse or person united by a similar affective relationship to the conjugal one, or their collateral relatives, may request the declaration of intestate heirs”.

As for the notary, the free choice of Notary is limited, since it must be the one territorially competent for it. According to article 55 of the Notarial Law, it must be granted before the “Notary competent to act in the place where the deceased had their last domicile or habitual residence, or where most of their estate is located, or in the place where they died, provided they were in Spain, at the applicant’s choice. They may also choose a Notary from a district adjacent to the aforementioned. In the absence of all of these, the Notary of the applicant’s place of domicile shall be competent.”

That said, once the declaration of intestate heirs has been made, you can go to your trusted Notary to grant the inheritance, in a similar way to an inheritance with a will. There they can manage the processing of a declaration of heirs. It determines who are the closest relatives of the deceased entitled to the inheritance of the assets, given that there was no prior will. Generally, according to articles 441-1 of the Civil Code of Catalonia, the order of heirs is as follows:

1. Children and descendants.
2. Spouse or civil partner.
3. Parents and ascendants.
4. Siblings and children of siblings.
5. Other collateral relatives up to the fourth degree.
6. The Generalitat of Catalonia.

Additionally, it should be taken into account that if descendants and the spouse or civil partner coexist, although the former are heirs, the latter have the right to universal usufruct, that is, over all the deceased’s assets, although they may opt to substitute this usufruct right for a quarter of the inheritance in full ownership and the usufruct of the family home, according to articles 442-3 and 442-5.

On the other hand, in common law, although similar, the order of succession changes slightly, as follows:

1. Children and descendants.
2. Parents and ascendants.
3. Spouse or civil partner.
4. Siblings and children of siblings.
5. Other collateral relatives up to the fourth degree.
6. The State.

Whatever the legitimate heir interested in processing the inheritance of the assets, you must always go to a notary. They are the ones who can certify the state of affairs and the rights of the interested parties and relatives of the deceased to inherit.

In this regard, it is necessary to understand that a declaration of heirs is equivalent to a will. As such, it can be used to go to various registries and banks to demand the change of ownership of the assets. Of course, one must not lose sight of the possibility that there may be taxes that must be settled in due time and form. Everything will depend on the legislation of each of the Autonomous Communities in each different case.

In conclusion, the ideal is to go to a good notary who knows how to professionally handle each particular case. From JLA Notarios (notary in Barcelona), we are at your disposal for any doubt or question about this procedure. Do not hesitate to contact us!