Intestacy

So far in this series of articles about Spanish wills and probate, we have been looking at cases where the deceased made a will before dying. But what happens if no will was made or no will can be found? Here, we enter the territory of intestacy..

What is intestacy?

Intestacy is the formal legal name for when someone dies without making a will. In Spanish, it’s known as “sucesión intestada” or “sucesión legal” or “sucesión abintestato” or even “sucesión legítima” in the Spanish Civil Code.

So what happens?

Because the deceased made no will leaving instructions as to who should receive his or her estate, reference is made to the law.

There are a huge number of permutations here so it’s worth giving an example:

The children are first in line to benefit under the intestacy rules.

In this case, given that he has three children, each of the children will inherit one third of the estate.

However, one of them has predeceased their father. That does not mean that the share of the predeceased child passes to his or her siblings. In fact, the two grandchildren of the predeceased child will inherit half each of that one third (one sixth) through a mechanism known as “per stirpes” (through the branches).

Mr Pozo’s parents and siblings will not have any entitlement as there is a higher category (the children).

Some provision is made for the widowed spouse in that she will receive a life interest (usufructo) in one third of the estate, which, upon her death, will pass to the children.

Final comments

If you or your client are a relative of someone who has died with assets in Spain, it’s important to sign a document called “declaración de herederos” in which you can put forward your case to be included in the distribution of the estate. Contact your notary in Spain for assistance.

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