Formal notice to an heir to choose under Spanish law

This article sets out the rules governing the formal notice requiring an heir to choose under Spanish law and the legal effects attached to silence.

Reform of the rules governing succession options in Spain

The Voluntary Jurisdiction Act of 2 July 2015

Spanish Act No. 15/2015 of 2 July 2015 on voluntary jurisdiction amended the rules governing the exercise of the succession option. Before this reform, the formal notice procedure fell exclusively within the jurisdiction of the courts. Since the entry into force of this Act, Articles 1004 and 1005 of the Spanish Civil Code also confer this power on notaries, thereby simplifying and speeding up the procedure.

Conditions for issuing a formal notice to an heir

Law applicable to the succession

The formal notice requiring an heir to choose presupposes that the succession is governed by Spanish law. Where Spanish law does not apply to the succession, this mechanism cannot be implemented.

Minimum time limit after the opening of the succession

Under Spanish law, the formal notice may be initiated from the ninth day following the opening of the succession. This period is intended to ensure a minimum interval before any constraint is imposed on the heir.

Persons entitled to request the formal notice

Requirement of a legitimate interest

The request for a formal notice must be submitted to a notary by any person who can demonstrate a legitimate interest in the succession. In particular, the following may be regarded as having such an interest:

• a co-heir,
• a legatee,
• a creditor of the estate,
• any person whose rights depend on the liquidation of the succession.

Role of the notary and conduct of the procedure

Notification to the heir

The notary to whom the request is submitted serves a formal notice on the heir requiring him or her to state his or her succession option.

Time limit granted to the heir

• The heir has a period of thirty days in which to choose between:
• pure and simple acceptance of the inheritance,
• acceptance subject to the benefit of inventory,
• renunciation of the inheritance.

This time limit is mandatory.

Effects of the heir's silence

Tacit pure and simple acceptance

In the absence of a response within the thirty-day period, the inheritance is deemed to have been accepted purely and simply. Such tacit acceptance entails in particular:

• unlimited liability for the debts of the estate,
• the impossibility of reversing the option exercised.

Irrevocability of the succession option under Spanish law

Principle of irrevocability

Under Spanish law, both acceptance and renunciation of an inheritance are irrevocable. Once the option has been exercised, either expressly or as a result of a formal notice left unanswered, the heir may no longer change his or her decision. This principle reinforces the strategic importance of the formal notice procedure and the need for the heir to assess his or her position before any decision or inaction.

Practical issues in international successions

In successions involving non-resident heirs or assets located in several States, the formal notice requiring an heir to choose may serve as a procedural tool to unlock the situation. It must, however, be coordinated with:

• the civil law applicable to the succession,
• the applicable tax rules,
• the notarial and administrative procedures in Spain.

A poorly anticipated formal notice may result in tacit acceptance with significant financial consequences.

For further information

For an overall analysis of succession options in a Franco-Spanish context, you may consult the following pages:

• Inheritance in Spain: assistance for French-speaking heirs
• Inheritance tax in Spain