Probate in Spain Without a Will 2026: Intestate Succession

When a Spanish resident dies without a valid will, the estate enters intestate succession — a process that requires a Declaration of Intestate Heirs (Declaracion de Herederos Abintestato) before any asset can pass. The intestate path is materially slower, more expensive, and more dispute-prone than testate succession. This guide explains what happens, in what order, and what heirs need to do.

Why Intestate Is the Costly Path

Spanish succession follows two distinct paths depending on whether the deceased left a valid will. The intestate path requires a Declaration of Intestate Heirs — a step not needed when a will exists. The Declaration is issued by a notary if heirs are direct relatives (descendants, ascendants, spouse) or by a court for more distant relatives. It establishes legally who the heirs are before any property, bank account, or contractual right can pass.

The Order of Heirs Under Spanish Civil Code

If no will exists, Spanish Civil Code (or applicable regional civil law) sets the order: descendants first (children, grandchildren), then ascendants (parents, grandparents) if no descendants, then the surviving spouse if no descendants or ascendants, then collateral relatives (siblings, nephews/nieces, cousins) up to the fourth degree, and finally the State if no relatives within that range exist. The surviving spouse always retains a usufruct (life-interest) right over a share of the estate, even when there are children.

Issuing the Declaration of Intestate Heirs

For direct heirs, the Declaration is granted by a Spanish notary on submission of: death certificate, certificate of last wills (proving no Spanish will exists), original family book and birth certificates of all heirs, and DNI/NIE of all parties. The notary can typically grant the Declaration within a few weeks. For non-direct heirs (siblings, nephews, etc.) the Declaration must be obtained from a court — adding months and litigation cost. Foreign-issued documents must be apostilled and translated.

The Tax Layer — Inheritance Tax Anyway

Whether testate or intestate, Spanish inheritance tax (Impuesto sobre Sucesiones y Donaciones) is paid by the heirs based on the value of the inherited assets, the relationship to the deceased, and the regional rules where the estate is taxable. Intestate proceedings often delay the inheritance tax filing because heirs cannot calculate or pay until the Declaration establishes who they are. Spanish inheritance tax has a six-month filing window from the date of death (extendable by six more months on request) — late filing triggers penalties even before the heirs are fully identified.

Why a Spanish Will Avoids All of This

Making a Spanish will is the simplest preventive step. A notarial will eliminates the need for the Declaration entirely, accelerates the inheritance, reduces costs, and ensures assets pass exactly as the deceased intended. For foreign nationals owning Spanish property, a Spanish will limited to Spanish assets — running in parallel with the home-country will — is the standard professional structure. The cost of making one is a fraction of the savings to heirs.

Frequently Asked Questions

What if the deceased had a foreign will but no Spanish will?

The foreign will can be probated for Spanish assets, but it requires translation, apostille, recognition proceedings, and often Spanish court involvement. Cheaper and faster than full intestacy, but slower than a Spanish will.

How long does intestate take to resolve?

For direct heirs through a notary: 3 to 6 months including the Declaration and tax filings. For non-direct heirs through a court: 12 to 24 months or longer.

What if heirs disagree?

Disagreements can suspend the Declaration and force the case into court. A pre-existing will dramatically reduces this risk because the testator’s intentions are already documented and notarised.

Reviewed by: Maria Luisa de Castro, Expert in Off-plan Property Investment, CostaLuz Lawyers. Last updated: May 2026.