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Inheritance and Succession Lawyers

Inheritance or succession upon death (mortis causa) are synonymous terms. To succeed means to place oneself in the legal position of another. Upon a person’s death, the heir assumes the deceased’s legal position, succeeding to all their rights and obligations.

Inheritance is a universal succession of a person as heir to a set of assets and transferable rights and obligations belonging to the deceased person, with the heirs occupying the same legal position as the deceased.

Succession Law is the law that regulates everything related to the inheritance of a person. The Civil Code regulates the common Law of Succession, applicable to the majority of the national territory, with the exception of those Autonomous Communities that have their own Law of Succession.

Inheritance or succession lawyers can advise you on inheritance. We will study your case in our law firm.

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Inheritance and Succession

Inheritance lawyers

Our law firm in Madrid is specialized in Family and Succession Law, that is to say, in all the most private and intimate aspects of a person’s life. To this end, one of our specializations as lawyers is inheritance and succession.

As lawyers, we will accompany you throughout this process, providing you personalised and attentive service, with something as personal as the determination of your last will and testament, to whom you want  to leave your assets, who can be your heirs, how you can provide additional benefits your children or descendants or your spouse or.your registered partner (pareja de hecho).

Through various meetings in our law firm in Madrid or via videoconference, we will study your specific case, giving prior advice on what is applicable under Succession Law, applying it to what your wishes are regarding your last will and testament.

We will inform you about all aspects of inheritance, the drawing up of a will before a civil law notary, its

content, the suitability of appointing an executor and estate administrator, the legal possibility of disinheriting some of your children or heirs, the establishment of legacies or testamentary trusts, as specialised lawyers.

We will advise you on the possibility of settling your case out of court or if, on the contrary, it is necessary to bring the corresponding legal proceedings.

As expert lawyers in inheritance or succession, we will inform you of all the procedures, both on how to make a will, and once the testator has passed away and you have been named an heir, how the

inheritance can be divided among the beneficiaries and legatees, the possibility legally challenging the validity of the will, requesting an addition to the inheritance or a supplement to the forced heirship portion, determining the tax that you have to pay; the Inheritance or Donations Tax as well as  the Tax on the Increase in the Value of Urban Land, better known as Municipal Capital Gains Tax.

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Inheritance and Succession

Specialists in Inheritance, Donations, Wills and Probate

Our law firm is based in Madrid, however, we practice throughout Spain, enabling us to advise on inheritances regardless of your place of residence or that of the testator. We can also file any necessary claims for the resolution of inheritance matters in any court.

Inheritance can be a simple matter to resolve if all the beneficiaries and legatees of the deceased agree on how to proceed with the distribution of the estate or a more complicated matter, whether or not a will has been made.

The complexity of an inheritance is not necessarily related to its value. Sometimes, an estate comprising only a single property, and a bank account can be more complex to resolve than a multi-million estate with numerous real properties, companies, or financial products

The pre-existing relationships between the beneficiaries often play a significant role. That is why we, as inheritance lawyers, will not only give you personalized advice, but we can also act as mediators in the conflict that may arise aiming to find an out-of-court resolution.

In any case, making a will with the advice of expert inheritance lawyers can help to ensure that, once the testator has passed away, the problems of settling the inheritance are infinitely fewer.

Inheritance lawyers can help you to leave your inheritance during your lifetime to your heirs, by means of gifts to your children or descendants. These donations can be collatable or non-collatable, depending on whether or not you want them to be imputed to the heir’s estate.

Inheritance lawyers can also advise you as to whether these donations may affect the legitimate rights of the forced heirs and, therefore, will have to be reduced because they are inofficious according to the law.

Inheritance with a will

If there is a will in an inheritance, it is called a testate succession.

A will is the act by which a person disposes of all or part of his or her property after death.

If the testator has not provided in his will for the destination of all his property, for which he has not established anything, intestate succession shall be opened.

A will is an individual, solemn, very personal and essentially revocable act, i.e. a subsequent will can be granted at any time, which will automatically revoke the previous will and so on. The testament that will be valid is the last one granted by the person before his death. The revocation may be express or tacit.

There are many types of wills, but the most common are:

  • The open will, by which the testator states his last will and testament before a
  • In order for a holographic will to be valid, it must be written in full and signed by the testator, stating the year, month and day in which it is granted.

If it contains words crossed out, amended or between the lines, they shall be saved by the testator under his signature.

The will is often used to provide additional benefits to your spouse or your children and descendants beyond the statutory entitlement established in the Civil Code. It can also be used to make bequests to specific persons or to distribute your assets in the will itself, as well as to appoint an executor or executor-administrator.

Inheritance without a will

Before discussing this type of inheritance, it is necessary to point out that it is always advisable to make a will and to consult an expert inheritance lawyer to advise you on the best way to apply succession law to your specific case.

Intestate succession, also known as statutory succession, is that which is granted by operation of law, when the testamentary heirs are missing in whole or in part.

In such cases, the legal heirs must go to the civil law notary in the place of residence of the deceased, who is also known as the testator, and execute a declaration of intestate heirs (acta de declaración de herederos ab intestato).

If there is no will, the Civil Code establishes an order of preference for succession or inheritance:

Succession in the direct descending line

Children and descendants (grandchildren) are called first

Succession in the direct ascending line

In the absence of children or descendants, the parents and other ascendants shall inherit.

Succession of the surviving spouse

In the absence of the above, the surviving spouse shall inherit, unless he/she is legally or de facto separated.

Succession of collaterals relatives

In the absence of the above, brothers and nephews and nieces shall inherit.

Succession of the State

In the absence of persons entitled to inherit in accordance with the provisions of the preceding paragraphs, the State shall inherit.

Inheritance and Succession

Lawyers specialised in contentious probate and complex inheritance matters

Our law firm in Madrid is specialized in inheritances. We advise you on both the simplest and the most complex inheritances.

As lawyers with many years of experience in inheritance law, we have successfully resolved, both in and out of court, the different types of problems that can arise.

So, for example, if the testator anticipates potential conflicts between his different children, spouse or other beneficiaries or legatees, we would recommend you to appoint an executor and state administrator this could be a trusted individual or even lawyers from our law firm in Madrid.

In this way, as executor- administrators, if the beneficiaries cannot reach an agreement, we could carry out the distribution of the estate before a civil law notary without the intervention of the beneficiaries being necessary.

There are times when the heirs find that the real estate that is the object of the inheritance is not duly registered in the Land Registry, with our advice we will help you to deed and register the property in the Land Registry.

We have also initiated legal proceedings in court, challenging wills on grounds of the testator’s lack of capacity, or seeking to invalidate the distribution of the estate where assets not belonging to the testator were included. We have requested the addition of assets to the estate or the rescission of the distribution due to substantial detriment.

It can also happen that the testator in life has made donations to their beneficiaries, and, once the testator has passed away, it is found that these gifts are inofficious as they affect the legitimate rights of the forced heirs, and so we have gone to court to challenge these gifts.

The right to claim division of an inheritance is imprescriptible, and there are inheritances that are entrenched in generations of heirs. With our advice as lawyers, we have carried out division of states that had been unresolved for more than 60 years, carrying out the different division and allocation of assets until they were registered in the Land Registry in the name of the current heirs.

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Inheritance and Succession

Requirements for administering and distributing an estate

The first thing to do is to obtain the Death Certificate of the deceased from the Civil Registry Office.

Once you have the Death Certificate, you must request the Certificate of the Register of Last Will and Testament, this document is essential as it is where it will be stated whether or not the deceased has made a will. In the same body we will also request the Certificate of Insurance with Death Cover, to see if the deceased had life insurance or annuities.

If the deceased has made a will, we must go to the civil law notary before whom the last will was made, in order to obtain an authorised copy of the will.

If the deceased has not made a will, we will have to go before a civil law notary of the notarial district corresponding to the habitual residence of the deceased in order to execute the corresponding Declaration of Intestate Succession (Acta de Declaración de Herederos Ab Intestato)

In order to process the Declaration of Intestate Succession, the Death Certificate and the Certificate of the  Register of Last Will and Testament (Certificado del Registro de Actos de Última Voluntad).must be provided.

Likewise, kinship with the deceased will have to be accredited, for example, in the case of children being heirs, the official family records (Libro de Familia) will suffice.

Two witnesses must also appear who shall state that they know the deceased and that they are the sole heirs of the deceased.

After this, the inheritance will be divided among the heirs, which must be done in a notarial deed. If there are no real estate assets, the partition could be carried out in a private document.

Once all this has been done, you have to proceed to pay the Inheritance Tax and, if there is real estate in the inheritance, you will also have to pay the Tax on the Increase in the Value of Urban Land, better known as municipal capital gains tax (Impuesto sobre el Incremento del Valor de Terrenos de Naturaleza Urbana).

Without proof of payment of these taxes, you will not be able to access the deceased’s bank accounts, nor will you be able to register the inherited real property in the Land Registry.

Inheritance and Succession

Inheritance law firm

Winkels Abogados is a law firm in Madrid with a vocation to cover all the needs of family and

inheritance law. We are lawyers specialised in inheritance, but also in divorce, filiation, paternal- child relationships, proceedings on the capacity of persons, economic and matrimonial regimes, among other family law matters. We can therefore advise you on everything that may affect your inheritance.

We offer recommendations for making a will if you are remarried and have children from both marriages. We can also advise on how to protect and provide for the needs of your child or family member with a disability through appropriate provisions in your will.

We can guide you on how to protect your unmarried partner in your inheritance if you are not married, what rights he/she has or what tax benefits he/she has in the payment of Inheritance Tax.

If you already have a conflict with an inheritance, our lawyers will advise you on the possibilities of resolving the case out of court, or if legal proceedings are necessary.

We will see if your inheritance has violated your legitimate rights and how to restore your rights.

As inheritance lawyers, we can inform you about the cases in which you can disinherit your child and the legal procedure for doing so. If you have been wrongfully disinherited, we can also defend

your right to inheritance through the corresponding legal proceedings.

Inheritance and Succession

Inheritance and succession law firm in Madrid

Our law firm in Madrid specialises in inheritance or succession law, so we can advise you on any questions you may have about inheritance, whether you live in Madrid or in any other municipality in the country.

We will attend to you at our offices in Madrid or via videoconference, if you prefer, whether you already have a problem regarding an inheritance or you wish to receive prior advice on the content of your will or how to foresee the future difficulties that your inheritance could pose for your heirs.

As our law firm is based in Madrid, we have extensive knowledge of all the agents that may be
involved in inheritances in Madrid, notaries, probate specialists, estate agents, courts, land registries, inheritance tax processing before the Madrid Regional Tax Office, or the municipal capital gains tax payment on inherited property located in the municipality of Madrid, as well as in the entire Autonomous Community of Madrid.

We can take care of all your inheritance procedures in Madrid from start to finish.

We will always try to find an out-of-court solution to your case and, if this is not possible, we will resort to the corresponding legal proceedings.

We answer your questions

Frequently Asked Questions about Estate Administration and Succession

Our law firm specialised in inheritance can advise you on how to administer an estate.
First, you will obtain the necessary documents; the Death Certificate of the deceased with which you can obtain the Certificate of the Register of Last Will and Testament (Certificado del Registro de Actos de Última Voluntad), which will show whether the deceased has made a will or not.
If there is a Will, you will request an authorised copy from the civil law notary and, if there is not, you will go to the notary who will process the Act of Declaration of Intestate Succession. (Acta de Declaración de Herederos Ab Intestato)
The inheritance will be awarded and divided among the beneficiaries in a public deed or private document, followed by the required tax payments.

As lawyers specialised in inheritance, we can advise you on this matter.
In common Succession law, whether the deceased has made a will or not, there is a portion of assets that cannot be freely disposed of, as by law they must go to certain persons.

The legitimate share is the portion of assets that the deceased cannot dispose of because it is reserved by law for certain heirs, called forced heirs or statutory heirs.

They are forced heirs:

  1. The children and descendants with respect to their parents and ascendants.
  2. In the absence of the aforementioned, the parents and ascendants with respect to their children and descendants.
  3. The widow or widower in the manner and to the extent established by the Civil Code.

The reserved share is intangible, so if the testator has left to a person’s assets that may affect the reserved share of the forced heirs, it will give rise to its reduction and other legal proceedings in defense of the reserved share if it is attacked.

1.- The statutory share (legítima) of the children and descendants: This will be two thirds of the inheritance.
The inheritance is divided into three thirds:
One third of the legitimate (strict), one third of improvement and one third of free disposal.
The legitimate share of the children and descendants will necessarily be the third of the strict legitimate share, the third of improvement being destined to improve some or all of the children or descendants.
The third of free disposal, as its name indicates, can be left by the testator to whomever he wishes.

2.- The statutory share of the ascendants: The statutory share of the parents or ascendants is half of the inheritance of the children and descendants, except in the case in which they concur with the widowed spouse of the deceased descendant, in which case it will be one third of the inheritance.

3.- The surviving spouse’s statutory share: The spouse who at the death of his/her spouse was not legally or de facto separated from him/her, if he/she participates in the inheritance with children or descendants, shall have the right to the usufruct of the third destined for improvement.

If there are no descendants, but there are ascendants, the surviving spouse shall be entitled to the usufruct of one half of the inheritance.
If there are no descendants or ascendants, the surviving spouse is entitled to the usufruct of two thirds of the inheritance.

Winkels Abogados is a law firm in Madrid with a vocation to cover all the needs of family and inheritance law. We are lawyers specialised in inheritance, but also in divorce, filiation, paternal-child relationships, proceedings on the capacity of persons, economic and matrimonial regimes, among other family law matters.
From our global experience in family law we can approach inheritances in the most comprehensive manner.
We can advise you on any question you may have about whether or not to make a will, and the content of the will in view of your personal situation and your wishes, taking into account current legislation.

We can defend you against any legal proceedings brought against you regarding the judicial division of an estate, will’s validity, challenges to the distribution of an estate, claims for omitted assets in an estate, claims for supplementary share of an estate (relating to forced heirship). We can also initiate legal action on your behalf for these or other related matters.

The basic documents required to administer an estate:

  • Death Certificate of the deceased with which you can obtain the Certificate of the Register of Last Will and Testament, which will show whether the deceased has made a will or not.
  • Insurance with Death Cover certificate. Life insurance.
  • The testament of the deceased or, if there is no testament, the Act of Declaration of Intestate Succession before a civil law notary.
  • A list or inventory of the real estate, current accounts or any other rights or debts held by the deceased.
  • In the case of real estate, the deed of ownership of the property is required and, in the case of current accounts, a certificate of the balance in the accounts at the date of death of the deceased.

The taxes levied on the inheritance are:
Inheritance Tax (Impuesto de sucesiones)
The inheritance is subject to the corresponding Inheritance Tax which must be paid within 6 months from the date of death.
An extension can be requested for a further 6 months (one year in total) to pay this tax.

Tax on the Increase in Value of Urban Lands (Impuesto Sobre el Incremento del Valor de Los Terrenos de Naturaleza Urbana)
Known as Plusvalia municipal, this is a tax that must be paid to the Town Hall where the property you inherit is located.
This tax is usually quite high and its amount will depend on the Municipal Ordinance of the corresponding Town Hall, taking into consideration the cadastral value (land value) of the property and the years of ownership or the difference between the purchase value and the current value.
The deadline for payment is 6 months from the date of death, extendable for a further six months at the request of the interested party.

It is possible to refuse an inheritance, specifically the correct word is “renounce” or “disclaim” the inheritance.

  • The disclaimer or renunciation of the inheritance cannot be partial or conditional.
  • The renunciation of the inheritance must be express and made in a public deed. If the heir disclaims the inheritance to the detriment of his own creditors, the latter may ask the Judge to authorise them to accept it on the heir´s behalf.

There have been cases in which the heirs have renounced an inheritance when the inheritance taxes are so high that the heirs cannot pay them from their own patrimony, and there are not enough assets in the inheritance to pay them. Before giving up something like this, come to our firm of lawyers specialised in inheritance to advise you on these issues.

To avoid paying debts of the estate from your personal assets, you can accept the inheritance subject to inventory (a beneficio de inventario)

  • The inheritance can be accepted purely and simply, or subject to inventory.
  • Acceptance subject to inventory. The declaration of accepting the inheritance subjected to inventory must be made before a civil law notary.

In this way, the heir can see what the assets and liabilities of the inheritance are before accepting. In this case, the heir will only be liable for the debts and burdens of the inheritance as far as the assets of the inheritance reach, and will never be liable with his or her personal assets.

If you have any questions, contact an expert inheritance lawyer.

Inheritance (herencia) and succession (sucesión) are synonymous terms. There is intestate succession or inheritance, i.e. there is no will, and testate succession or inheritance when the testator dies having granted a will.
Inheritance is a way of transferring ownership of property to other persons upon death (mortis causa).

Donations (donaciones) is a way of transferring ownership of property to other persons between persons who are alive.(inter vivos).

Donation is an act of liberality whereby one person disposes of a thing free of charge in favour of another, who accepts it.

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