The declaration of heirs ab intestato constitutes a key procedure in Spanish succession law, especially in cases where the deceased has not made a will. In our daily practice, we have observed that both the notarial and judicial procedures present peculiarities that require detailed analysis. This article aims to unravel the essential aspects of the process, from the notarial competence established by Law 15/2015 to the contentious aspects that may arise before the Letrado de la Administración de Justicia.
Notarial Competence and Applicable Regulations
Law 15/2015, on Voluntary Jurisdiction, grants notaries the competence to process the declaration of heirs ab intestato in cases that do not present controversy. This competence excludes collateral relatives beyond the fourth degree, who must resort to judicial proceedings. Article 55 of this law establishes that the notary of the deceased's last domicile, place of death, or where the majority of the hereditary estate is located will be competent.
The notarial procedure is initiated at the request of an interested party and requires the submission of specific documentation, such as the death certificate and the certificate from the General Registry of Last Wills. The absence of a will must be verified notarially, which makes the notary a central figure in ensuring legal and procedural compliance.
Required Documentation and Deadlines
The proper presentation of documentation is crucial for the declaration of heirs ab intestato. Among the essential documents are the death certificate, the certificate of Last Wills, and the birth and marriage certificates of the presumed heirs. Additionally, it is often necessary to provide documents proving kinship, which may include family books or birth and marriage certificates.
The deadline for resolving the notarial file is not fixed, but in practice, it usually concludes within a reasonable period of one to three months, depending on the complexity and speed of obtaining the required documentation. Article 56 of the Law on Voluntary Jurisdiction establishes the obligation to publish notices on the bulletin board of the corresponding municipality, although digitization is transforming these practices.
The Contentious File before the Letrado de la Administración de Justicia
When controversy arises regarding the quality of an heir or the distribution of the inheritance, the procedure must be channeled through the judicial route. Here, the Letrado de la Administración de Justicia plays a decisive role in processing the contentious file, as provided in Article 63 of the Law on Voluntary Jurisdiction. This procedure is initiated by a claim and may include the taking of evidence if required by the case.
Recent jurisprudence from the Supreme Court, such as Judgment 456/2023, has emphasized the importance of documentary and expert evidence in these files, highlighting that the burden of proof lies with the party claiming the status of heir. This judicial position reinforces the need for meticulous legal advice and thorough case preparation from its initial phases.
Frequent Practical and Litigious Aspects
In our experience, files for the declaration of heirs ab intestato are not exempt from conflicts. A recurring issue is the accreditation of kinship in cases of unrecognized parentage or complex family relationships. In such situations, the taking of additional evidence, such as DNA tests, may be necessary. Likewise, the emergence of unexpected or unknown heirs can lead to challenges to the file.
Another frequent litigious aspect is the valuation of the assets of the hereditary estate when there is disagreement among heirs regarding their distribution. In these cases, expert reports on asset appraisal can be decisive for resolving the conflict, as established by the jurisprudence of the Superior Court of Justice of Catalonia in its 2024 ruling.
- Verify the absence of a will through the certificate from the Registry of Last Wills.
- Prove kinship with appropriate documentation.
- Publish notices in accordance with current legal provisions.
In conclusion, the procedure for declaring heirs ab intestato, whether notarial or judicial, requires detailed and expert management to ensure that all legal requirements are met. Tools like LexPartis are invaluable for legal professionals, allowing for a more rigorous and efficient management of these complex processes that often get tangled in formal and documentary details.