The Declaration of Intestate Heirs (Declaracion de Herederos Abintestato) in Spain in 2026: The Notarial Acta de Notoriedad When There Is No Will

If a property owner dies in Spain without a valid will, the heirs must obtain a declaracion de herederos abintestato before they can inherit, sell, or register the property. Since 23 July 2015, when Ley 15/2015 de Jurisdiccion Voluntaria entered into force, this procedure is notarial, not judicial, for descendants, ascendants, spouse, and collateral relatives. The notary verifies the family relationships through two witnesses and civil registry documents, then issues a public acta de notoriedad declaring who the statutory heirs are. It is the mandatory next step after the Certificado de Actos de Ultima Voluntad confirms no will exists.

What is the declaracion de herederos abintestato?

The declaracion de herederos abintestato is the notarial procedure that identifies who inherits a person’s estate when they die in Spain without a valid will. “Abintestato” literally means without a will. The procedure produces a public document called an acta de notoriedad, in which the notary declares, based on verified facts, which relatives are the statutory heirs and what share of the inheritance each receives under the Codigo Civil.

Before Ley 15/2015, the declaracion de herederos was a judicial procedure handled by the courts. Ley 15/2015’s Disposicion final undecima rewrote Articles 55 and 56 of the Ley del Notariado (originally enacted in 1862), transferring the competence to notaries for descendants, ascendants, the surviving spouse or person in an analogous relationship of affectivity, and collateral relatives. The reform entered into force on 23 July 2015. According to the Consejo General del Notariado, notaries authorised 707,858 actas de notoriedad de declaracion de herederos abintestato between July 2015 and March 2023, accounting for 97 per cent of all succession-related voluntary jurisdiction acts.

The notary does not adjudicate rights; that remains a judicial function. The notary declares that the family facts are notorious, based on documents and witness testimony, and then identifies who the law designates as heir under the Codigo Civil’s intestate succession order in Articles 930 to 958.

Who can request the declaracion de herederos abintestato?

Article 55.1 of the Ley del Notariado provides that anyone who considers themselves entitled to succeed abintestato may instar the declaracion, provided they belong to one of the following categories: descendants, ascendants, the surviving spouse, a person united by an analogous relationship of affectivity to the conjugal one, or collateral relatives. The procedure is tramitated as an acta de notoriedad authorised by a notary.

The competence rules in Article 55.1 give the applicant a choice of notary: the notary of the place where the deceased had their last domicile or habitual residence, where the majority of their patrimony is located, or where they died, provided all these places are in Spain. The applicant may also choose a notary from a neighbouring district. If none of these options applies, the notary of the applicant’s own domicile is competent.

Article 55.2 adds that the acta is initiated at the request of any person with a legitimate interest, as judged by the notary. This means the applicant does not need to be an heir themselves; a creditor or other interested party can start the procedure, though the notary will assess whether their interest is legitimate.

What documents must the heirs bring to the notary?

Article 56.1 of the Ley del Notariado sets the documentary requirements. The request must contain the identification and data of the persons the applicant considers called to the inheritance, accompanied by documents proving kinship with the deceased. It must also establish the identity and domicile of the deceased.

The applicant must prove two things through official registry documents: first, that the deceased has died, and second, that the death occurred without a succession title. The proof of death comes from the civil registry (the literal death certificate). The proof of no will comes from the Registro General de Actos de Ultima Voluntad, which issues the Certificado de Actos de Ultima Voluntad. If a will exists but is invalid, or if the will names an heir who cannot or will not inherit, a firm court judgment declaring the invalidity of the succession title or the heir appointment is required instead.

The applicant must also affirm the certainty of the positive and negative facts on which the acta is founded: that the deceased died without a last will disposition, and that the persons designated are the sole heirs. All documents presented, or testimonies of them, are incorporated into the acta.

The typical document set, as described by the Consejo General del Notariado, includes the DNI of the deceased, the literal death certificate, the Certificado de Actos de Ultima Voluntad, the Libro de Familia (family book) or equivalent kinship documents, and the identity documents of the proposed heirs.

What role do the two witnesses play?

Article 56.2 requires that the acta contain, at minimum, the declaration of two witnesses who confirm, from their own knowledge or by notoriety, the positive and negative facts whose notoriety is being declared. In practice, the witnesses confirm that the deceased died without a will and that the persons presented as heirs are indeed the closest relatives.

The witnesses may be relatives of the deceased, by blood or affinity, provided they have no direct interest in the succession. This means a cousin who is not an heir can serve as a witness, but a sibling who is a proposed heir cannot. The notary may also practice additional proofs beyond those proposed by the applicant, particularly to verify the identity, domicile, nationality, and civil vecindad of the interested parties, and, where applicable, the foreign law that may apply.

If the identity or address of any interested party is unknown, the notary must seek the assistance of public organs, registries, and consular authorities. If this fails, the notary must publish an announcement in the Boletin Oficial del Estado and post it on the notice boards of the town halls corresponding to the deceased’s last domicile, the place of death, and where the majority of their real estate is located. Any interested party may oppose the claim, present allegations, or submit documents within one month of publication.

How long does the notarial procedure take?

The timeline depends on whether the notary must publish an announcement because an heir’s identity or address is unknown. The procedural steps and deadlines under Article 56 are:

Step	Governing article	Deadline	Trigger
Initial request	Art 55.2	Day 0	Applicant files with notary
Witness declarations	Art 56.2	During procedure	Two witnesses confirm facts
Additional proofs	Art 56.2	Notary’s discretion	Identity, domicile, nationality
BOE announcement (if needed)	Art 56.2	If heirs unknown	Publication in BOE plus town halls
Opposition period	Art 56.2	One month	From publication or last notice
Notary’s judgment	Art 56.3	20 business days	From initial request or end of opposition
Protocolisation	Art 56.3	Same day as judgment	Acta incorporated to protocol
State fallback	Art 56.4	Two months from citation	No claimants or all declared without right

Under Article 56.3, once the diligence is complete and 20 business days have passed from the initial request, or from the end of the one-month opposition period if an announcement was published, the notary records their judgment on whether the facts have been demonstrated by notoriety. Regardless of the judgment, the acta is closed and protocolised.

If the notary’s judgment is affirmative, the acta declares which relatives of the deceased are the intestate heirs, expressing their identity circumstances and the rights the law grants them in the inheritance. The acta reserves the right of anyone not recognised as heir to pursue their claim in court.

What happens when no heirs can be identified?

Article 56.4 provides the fallback. If two months pass from the citation of interested parties without anyone appearing, or if those who did appear are declared without right, and if in the notary’s judgment no person with a right to be called exists, the notary sends a copy of the acta to the corresponding Delegacion de Economia y Hacienda. This triggers the administrative declaration of heir in favour of the State, or, where the autonomous community has competence, the delegation transfers the notification to the competent regional administration.

This connects to Codigo Civil Article 956, under which the State inherits the entire estate when no descendant, ascendant, spouse, sibling, or collateral within the fourth degree survives. The State is deemed to accept under benefit of inventory, and two-thirds of the estate value goes to social interest purposes. The administrative declaration, not the notarial acta, is the registry title for State inheritance under Ley Hipotecaria Article 14.

Can the acta de notoriedad register inherited property?

Yes. Ley 15/2015 reformed Article 14 of the Ley Hipotecaria to recognise the acta de notoriedad for declaracion de herederos abintestato as a succession title for registry purposes, alongside wills, succession contracts, the administrative declaration of heir in favour of the State, and the European Certificate of Succession.

This means heirs identified in the acta can register inherited property at the Land Registry without needing a court order. Before the 2015 reform, the lack of a notarial succession title for intestate heirs was a practical obstacle: property could not be inscribed without a judicial declaration. The reform closed that gap.

For foreign heirs, the acta is also the document that Spanish banks, the Land Registry, and the tax authority (Agencia Tributaria) will require before releasing accounts, transferring title, or accepting an inheritance tax return (Modelo 650). The inheritance process for non-residents begins with this document.

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

A foreign will can govern Spanish property under EU Regulation 650/2012, but it is not automatically registered in Spanish records. The Certificado de Actos de Ultima Voluntad only searches Spanish notarial records, so it will return a negative result for a deceased who left only a foreign will. This creates a practical fork.

If the foreign will is valid and covers Spanish assets, the heirs should protocolise it before a Spanish notary. This requires a notarial act of protocolisation, not a declaracion de herederos. The importance of making a Spanish will is precisely to avoid this added complexity.

If the deceased left no will at all, in any jurisdiction, the declaracion de herederos abintestato is the correct procedure. The notary will apply the Codigo Civil intestate succession order (Articles 930 to 958), which is also the default under EU Regulation 650/2012 Article 21 for a person habitually resident in Spain. The order gives priority to descendants, then ascendants, then the surviving spouse, then siblings and collaterals to the fourth degree, and finally the State.

One practical gap: a holographic will (testamento ologo) is not registered until it is protocolised after death. If the deceased wrote a holographic will that has not yet been found and protocolised, the Certificado de Actos de Ultima Voluntad will return a false negative, and the heirs may proceed with a declaracion de herederos unaware that a will exists.

A worked example: a British owner in Marbella

Consider a British national, habitually resident in Marbella, who dies owning a Spanish apartment worth EUR 500,000. He has a surviving spouse and two adult children. He left no Spanish will and no UK will.

The heirs must:

1. Obtain the literal death certificate from the Spanish civil registry.
2. Request the Certificado de Actos de Ultima Voluntad 15 business days after the death.
3. When the certificate confirms no will, engage a notary in Marbella (the deceased’s last domicile) to initiate the declaracion de herederos abintestato.
4. Present the DNI, death certificate, Certificado de Ultima Voluntad, Libro de Familia, and the children’s identity documents.
5. Bring two witnesses who knew the family and have no direct interest in the succession.
6. Wait 20 business days for the notary to issue the acta de notoriedad.
7. Once issued, the acta declares the spouse and two children as heirs under Codigo Civil Articles 932 and 834: the children inherit the apartment in equal shares, and the spouse receives a usufruct over one-third of the estate.
8. File Modelo 650 (inheritance tax) within six months of death, attaching the acta.
9. Register the property transfer at the Land Registry using the acta as the succession title under Ley Hipotecaria Article 14.

The herencia yacente phase, during which no one owns the estate, ends when the heirs accept the inheritance following the acta. The entire process, from death to registration, typically takes two to four months if no complications arise.