The private document the siblings signed at their father’s home, in which one of them declares that he “wants nothing to do with the estate”, is worthless as a renunciation. So is the email sent to the bank announcing that he will not take over the loan, and so is whatever was said to the branch manager. Since Act 15/2015, renouncing an inheritance in Spain exists only if it is executed before a notary in a public instrument (article 1008 of the Civil Code), and acceptance with benefit of inventory requires a notarial declaration followed by an inventory drawn up within the legal time limits (articles 1011 and 1013). Everything else is paper a creditor is not obliged to respect. What can actually be raised against the bank, the tax authority or a supplier who claims is the notarial deed of renunciation, or the deed of acceptance with benefit of inventory once the inventory has been closed.
There is a second misunderstanding, the belief that doing nothing protects you. If a creditor serves a notarial demand on you and you let the thirty calendar days pass without answering, the law deems that you have accepted the estate outright (article 1005), and from that moment your own assets answer for the deceased’s debts. At the firm we regularly see people who have spent months without touching the estate, convinced that this keeps them safe, and who discover the presumed acceptance when the claim arrives.
What is inherited and what is extinguished by death
The estate comprises all the assets, rights and obligations of a person that are not extinguished by death (article 659 of the Civil Code), and the heir succeeds the deceased in all of them by the mere fact of death (article 661). The mortgage loan, personal loans, credit cards, debts owed to the tax authority and to Social Security, unpaid community fees, the debts of a sole-trader business, unpaid rent and civil judgments ordering compensation are all inherited. So is the position of guarantor, which almost nobody bears in mind and which I deal with further down.
Purely personal obligations are extinguished by death. Criminal liability and criminal fines disappear (article 130 of the Criminal Code). Tax penalties never pass to the heirs, although the principal tax debt with its interest does (article 39 of General Tax Act 58/2003). Family maintenance ceases with the death of the person obliged to pay it (article 150 of the Civil Code). Compensatory maintenance after a divorce, however, is not extinguished by the mere fact of the debtor’s death, although the heirs may ask the court to reduce or cancel it if the estate cannot bear it (article 101).
Life insurance falls outside the estate. The capital is paid by the insurer directly to the designated beneficiary, even against the claims of the policyholder’s creditors (article 88 of Insurance Contract Act 50/1980). When an estate has more debts than assets, that policy is often the only thing the family receives clean.
The heir’s three answers and a fourth that hardly anyone uses
The law gives the person called to an inheritance three options (article 998). Outright acceptance makes the heir the debtor for all the charges on the estate, answering with the inherited assets and also with his own (article 1003). Acceptance with benefit of inventory limits liability to the assets of the estate, keeps the heir’s property separate from the deceased’s and preserves any claims the heir held against the deceased (article 1023). Renunciation means the person called was never an heir, with effect backdated to the day of death (article 989).
The three share rules that must be understood. It is not possible to accept or renounce in part, subject to a term or subject to a condition (article 990), so keeping the house and rejecting the loan is not an option. Once made they are irrevocable, save for a defect of consent or the appearance of an unknown will (article 997). And nobody may accept or renounce without being certain of the death and of his right to the estate (article 991), which is why the notary asks for the death certificate, the certificate of last wills and a copy of the will.
The fourth option is the right to deliberate (article 1010, second paragraph). The heir asks the notary to draw up an inventory before deciding, with creditors and legatees summoned, and once it is closed he has thirty days to accept or renounce (article 1019). It is the right route when nobody knows what the deceased owed and a full picture is wanted without commitment. While it lasts, legatees cannot claim their legacies (article 1020). It is rarely used because it is rarely known.
Accepting without meaning to, the acts the law treats as acceptance
Outright acceptance may be express, in a public or private document, or tacit, through acts that necessarily imply an intention to accept (article 999). The same article makes clear that acts of mere preservation or provisional administration do not imply acceptance. Most litigation of this kind is decided on that borderline.
Tacit acceptance includes withdrawing money from the deceased’s account for your own use, selling the car or any other asset, letting the flat or collecting rent from a tenant, signing at the bank the deed of acceptance and allocation that the bank itself prepares to unblock the accounts, or dividing the contents of the house among siblings. The Civil Code adds three specific cases (article 1000). The estate is deemed accepted when the heir sells, donates or assigns his right, when he renounces in favour of one or more specific co-heirs, and when he renounces for a price in favour of all of them. The renunciation that protects you is the gratuitous, undirected one made before a notary. Anyone who removes or conceals assets of the estate also loses the right to renounce and is treated as having accepted outright (article 1002).
Paying for the funeral and the final illness, requesting certificates and land registry extracts, paying the community fees, the home insurance or the mortgage instalment from the deceased’s account so that foreclosure is avoided, and safeguarding the assets are not acceptance. Filing the inheritance tax return is frequently argued over. The prevailing case law does not regard it, on its own, as tacit acceptance, because it is a tax obligation, but combined with other acts it can weigh. If you are going to do anything with the estate before deciding, do it always with the estate’s money, with an invoice, and without moving anything into your own account.
How to find out what the deceased owed before deciding
Nobody should accept or renounce blind, and the information exists. The certificate of last wills says whether there is a will and before which notary. The Register of life insurance contracts says whether there was a policy. The Bank of Spain’s Central Credit Register provides heirs, on proof of their status, with the deceased’s banking exposures, which is how loans and guarantees with banks the family never knew he dealt with come to light. The Land Registry extract shows the mortgages and attachments on each property, and the Movable Property Register shows vehicle financing. The tax authority and the Social Security Treasury issue debt certificates to heirs. If the deceased ran a business, the Companies Register and the books themselves complete the picture.
None of those enquiries amounts to accepting the estate. What does carry risk is the meeting at the bank where you are offered “some papers so you can access the money”. Those papers are almost always an outright acceptance.
How creditors act in practice
Until someone accepts, the undistributed estate can itself be sued (article 6 of the Civil Procedure Act) and its assets can be attached. A creditor in a hurry does not wait. He goes to the notary and has each person called served with the thirty-calendar-day demand under article 1005, and if the person called stays silent, the creditor now has a debtor with property of his own. From that day he can sue or start an order-for-payment procedure, and after judgment attach your salary above the minimum wage (article 607 of the Civil Procedure Act), your accounts and your own home, which enjoys no protection whatsoever against inherited debts.
The tax authority needs no lawsuit. The General Tax Act allows it to continue enforced collection directly against the successors (article 177), so the enforcement notice addressed to the father ends up in the letterbox of the son who accepted. Social Security works the same way with the debts of a deceased self-employed person. If you accepted with benefit of inventory, none of them can go beyond the assets of the estate, and your own personal creditors cannot interfere in the estate until the deceased’s creditors have been paid (article 1034).
If you are on the other side, as the creditor of a deceased person, the tool is the same notarial demand, and in this article on collecting from a debtor who says he has nothing I explain how assets are traced. When a family comes to the firm with the demand already served, the first thing we do is measure the estate against the known debts and decide within those thirty days which deed is executed, and in what order if several people are called. That work is done in our civil law practice.
The deadlines, with the statute in hand
The Civil Code deadlines are short and chained together, and missing one always has the same consequence, outright acceptance. The table gathers those that decide the case.
| Step | Time limit | Legal basis |
|---|---|---|
| Nobody may require the heir to decide before this period has run from the death | 9 days | Article 1004 of the Civil Code |
| Reply to a creditor’s notarial demand; silence is outright acceptance | 30 calendar days | Article 1005 of the Civil Code |
| Request the drawing up of an inventory if the heir holds estate assets, from the day he learns he is an heir | 30 days | Article 1014 of the Civil Code |
| Start and completion of the notarial inventory from the summoning of creditors; maximum extension | 30 days to start, 60 to finish, up to 1 year with extension | Article 1017 of the Civil Code |
| Accept or renounce after the inventory, where the right to deliberate was used | 30 days | Article 1019 of the Civil Code |
| Filing of the inheritance tax return, extendable by a further six months | 6 months | Article 67 of the Inheritance Tax Regulations |
The article 1014 period runs only against someone who holds estate assets or has acted as heir. If he holds none, it runs from the expiry of the article 1005 demand (article 1015), and if nobody has served a demand or sued him, he may claim the benefit of inventory for as long as the action to claim the estate has not prescribed (article 1016), which the courts place at thirty years. What I mean is that the peace of mind of someone who has touched nothing is real, but it ends the moment a creditor makes a move.
The deceased’s debts are not renewed by his death. Personal obligations without a special limitation period prescribe after five years (article 1964 of the Civil Code), the mortgage action after twenty, and tax debts after four (article 66 of the General Tax Act). A personal loan unpaid for six years with no claim interrupting the period should no longer worry you, even if the bank includes it in its letter.
What it costs and how long it takes to protect yourself before a notary
The deed of renunciation is the simplest document in the whole process. It is signed in a single visit with your identity document, the death certificate, the certificate of last wills and an authorised copy of the will if there is one, and as a document without a stated value its cost under the notarial fee scale stays in the tens of euros. Renouncing is quick and cheap. What is expensive is renouncing badly, in favour of a specific sibling or for a price, because that is an acceptance by another name.
Benefit of inventory is a procedure, not a signature. Act 15/2015 transferred the drawing up of inventories to notaries, now governed by articles 67 and 68 of the Notarial Act. The competent notary is one at the deceased’s last domicile, at the place where most of the assets are located, or at the place of death. The heir declares that he invokes the benefit, the notary summons known creditors and legatees, every asset and every debt is listed and valued, and the inventory is closed within the article 1017 deadlines. In an ordinary estate, with one home, two accounts and one loan, the full procedure is completed in three or four months. With property in several provinces, shareholdings or expert valuations it can stretch to a year. The cost depends on the length of the inventory and on any experts needed, and is markedly higher than a renunciation, but it is paid out of the estate.
After the inventory the estate remains under administration until all known creditors have been paid (article 1026), and only then does the heir come into full enjoyment of the remainder (article 1032). The benefit is lost if any asset is knowingly left out or if estate assets are sold before the creditors are paid without the authorisation of everyone concerned (article 1024). That is why at the firm we advise against selling anything, even the car nobody uses, until the inventory is closed.
Several heirs, some accept and some renounce
The decision is individual. Each person called accepts outright, accepts with benefit of inventory or renounces regardless of what the others do, and an inventory drawn up by one benefits those who come after him (article 1022). What changes is how liability is shared.
Before the estate is divided, creditors proceed against the community of heirs and are paid out of the common assets. Once it is divided, they can demand full payment of the debt from any heir who accepted outright, and only up to the value of his share from one who accepted with benefit of inventory (article 1084). The sibling who pays more than his share can claim the proportional part from the others (article 1085), which is of little use if the others have nothing to pay with. Someone who accepts outright alongside three siblings does not answer to the bank for a quarter of the debt, he answers for all of it, and then sorts it out with his siblings.
When one of the heirs renounces, his share accrues to those who accept (articles 981 and 982) or passes to the substitute named in the will. Those who remain receive more assets and, in the same proportion, more debts. And recognised creditors may object to the estate being divided until they are paid or given security (article 1082), so do not count on taking the house and leaving the debts for later.
If I renounce, who does the estate pass to and what happens to my children
The person who renounces transmits no right to his own heirs (article 766), but that does not mean the estate vanishes. If there is a will, it goes to the ordinary substitute if the testator named one, and if not, it accrues to the co-heirs. In intestate succession, if all the relatives of the nearest degree renounce, those of the next degree inherit in their own right (article 923), and a living person cannot be represented except in cases of disinheritance or unworthiness (article 929). If one of three siblings renounces, his share accrues to the other two (article 922). If all three renounce, the law calls the grandchildren.
To the question so many people ask, whether the debts pass to their children when they renounce, the answer is that your children may be called, but never dragged in. They will be called with the same three options you had, and if they are minors, with the strengthened protection I explain in the next section. Chain renunciations are common and the notary can execute them all on the same day if the persons called at each degree appear in order. The chain ends with the State, which always accepts with benefit of inventory (article 957), so no creditor is ever going to collect from anyone more than the estate is worth.
There is one case where renunciation is not free. If the person called has debts of his own and renounces so that his creditors cannot collect from the inheritance, those creditors may ask the court to authorise them to accept in his name, only up to the amount of their claims (article 1001).
Heirs who are minors or persons with disabilities
Parents need court authorisation to renounce an inheritance passing to a minor child, and if the court refuses it, the estate may only be accepted with benefit of inventory (article 166 of the Civil Code). The authorisation is processed as a voluntary jurisdiction procedure under Act 15/2015, with the Public Prosecutor taking part, and the court grants it when it is shown that the estate is insolvent. In practice, when the debts are uncertain and not clearly greater than the assets, the fastest solution is for the parents to accept on the minor’s behalf with benefit of inventory, which needs no authorisation and keeps the child’s property out of the creditors’ reach.
For a person with a disability under a curatorship with powers of representation, the curator needs court authorisation both to accept without benefit of inventory and to renounce (article 287 of the Civil Code, as worded by Act 8/2021). Someone assisted by a curator without powers of representation decides for himself with whatever assistance the court order provides.
Mortgaged home, tax authority, Social Security and guarantees
The mortgaged home is the most common case. If the flat is worth more than the outstanding balance and there are no other significant debts, accepting and continuing to pay is the sensible course. If it is worth less, or if there are also personal loans and cards, benefit of inventory prevents the shortfall coming out of your pocket. Check first whether the loan carried a linked life insurance policy, because in that case the insurer pays the bank and the house is freed. And remember that instalments left unpaid during the deceased’s lifetime form part of the debt that is inherited.
With the tax authority and Social Security, the debt passes in full and the penalties fall by the wayside. The heirs must also file the deceased’s income tax return for the year of death. If the deceased was self-employed with a going business, supplier debts, Social Security contributions and current contracts form part of the estate, and there the inventory has to be drawn up with the books open. The underlying problem, that of a sole-trader business exposing personal assets, I dealt with in this article on closing a business without dragging your personal assets, and much of it applies to heirs.
Guarantees are the invisible debt. The guarantee the father signed for a child’s flat or a friend’s loan is not extinguished by his death, because contracts bind the heirs (article 1257 of the Civil Code) and the Supreme Court has confirmed that the guarantor’s obligation is transmitted. Anyone who accepts outright becomes guarantor of a debt that may still be paid normally today and may stop being paid five years from now. With benefit of inventory, the guarantee is entered in the inventory as a contingent obligation and only the estate answers for it. Consulting the Central Credit Register is the only reliable way to know whether they exist.
Inheritance tax when the debts exceed the assets
The tax base is the net value of what is acquired. Debts of the deceased evidenced in a public document or in a private document meeting the legal requirements, or otherwise proven, are deductible, except those owed to the heirs themselves (article 13 of Act 29/1987), as are burial, funeral and final illness expenses (article 14). If the debts exceed the assets, the base is zero and no tax is due, but the return is still filed within six months, and the same applies to the municipal capital gains tax if there is urban property. In Galicia, moreover, descendants, ascendants and the spouse enjoy a reduction of one million euros in the base, so in the great majority of family estates the tax is not the problem.
Renunciation has its own tax treatment. Someone who renounces outright and gratuitously pays no inheritance tax, and the beneficiaries of the renunciation are taxed according to their own kinship with the deceased (article 28 of Act 29/1987). Someone who renounces in favour of a specific person is taxed on the inheritance as if he had accepted, and the person favoured also pays gift tax. A renunciation made after the tax has prescribed is likewise treated as a gift. That is why the wording of the deed matters more than it seems.
Turning back after accepting
Acceptance is irrevocable and may only be challenged for a defect of consent or the appearance of an unknown will (article 997). Mistake as to the existence or amount of the debts is rarely admitted as a defect, because the heir had the right to deliberate and the benefit of inventory within reach and did not use them. It does occasionally succeed where the heir was actively deceived, for instance by a co-heir who concealed the debts so that he would accept. Anyone who accepts and later discovers liabilities he knew nothing about faces a difficult lawsuit, and that is the reason for everything above.
What changes in the territories with their own civil law
Everything set out so far is the Civil Code, which applies in Galicia and most of Spain, but several territories have different rules and some are far more favourable to the heir.
In Catalonia, the Catalan Civil Code reverses the rule on silence. Served with a notarial demand, the person called has two months to answer and, if he stays silent, is deemed to renounce, unless he is a minor or a person with a disability, in which case the estate is deemed accepted with benefit of inventory (article 461-12). An heir who draws up an inventory within six months of learning of the succession enjoys the benefit without needing to declare it (article 461-15), and minors and persons with disabilities have it by operation of law (article 461-16). In Aragon, the heir answers for the deceased’s debts exclusively with the assets of the estate, with no need for an inventory (article 355 of the Aragonese Regional Civil Code). In the Basque Country, liability is limited to the value of the inherited assets at the time of succession (article 21 of Basque Civil Law Act 5/2015). Navarre keeps its own regime in the Fuero Nuevo, and the Balearic Islands essentially follow the Civil Code scheme on this point.
Galicia has no rule of its own on acceptance and renunciation, so the Civil Code deadlines and forms apply. What it does have is succession agreements, and the most used of them, the apartación, allows assets to be handed to a child during the parent’s lifetime in exchange for the child being excluded from the forced share. Whatever is handed over by apartación leaves the estate before death and does not form part of the inheritance later accepted or renounced, although the child may still be called as heir if the will or the law calls him. How that lifetime distribution works I explained in the article on apartación and pacto de mejora in Galicia.
What you can do today without committing yourself
Do not withdraw money from the deceased’s accounts into your own name or pay anything with it that is not an estate expense. Do not sign any document at the bank that you have not read calmly, least of all the one they present so that you can “access the funds”. Do not sell, let, give away or divide anything, not even what seems worthless. Keep every creditor’s letter, the bank statements, the mortgage and community fee receipts and the funeral invoices paid with estate money. Request the certificates of last wills and life insurance and the land registry extracts for the properties, which are free or nearly so and commit you to nothing. If you receive a notarial communication, note the date you received it, because the thirty days run from that day.
What is at stake and what we do
Anyone who decides on his own puts his own property at stake, with a thirty-day period that runs whether he knows it or not, and with a decision that afterwards allows no turning back. A mistake in the wording of the renunciation, a well-meant withdrawal or an inventory that leaves out the father’s guarantee turns the child into the debtor for everything. At the firm we measure the estate against the debts before anyone signs, decide with the family which deed each person called executes and in what order, and handle the inventory or the chain of renunciations before the notary so that no creditor gets past the estate’s assets. It is the work of our civil law practice. You can call +34 677 841 007 or write through the contact page. When you do, have to hand the death certificate, the certificate of last wills and the will if there is one, the list of assets and debts you know of, the latest bank statements and, above all, any creditor’s letter or notarial communication with the date you received it.
Frequently asked questions
If I renounce my parents’ estate, do the debts pass to my children?
Your children may be called to the estate if everyone in the previous degree renounces, but never dragged in. They will have the same options you had, accept, accept with benefit of inventory or renounce, and if they are minors you will need court authorisation to renounce on their behalf or it will be enough to accept for them with benefit of inventory. Nobody pays an inherited debt with his own property unless he accepts outright.
I have already paid for the funeral and used money from my father’s account, have I accepted the estate without knowing it?
Paying for the funeral and the final illness does not amount to accepting. Paying the community fees, the insurance or the mortgage instalment with estate money to preserve the assets does not either. Withdrawing money from the account for your own expenses, selling assets or letting the flat are acts of tacit acceptance. If you have done any of these, stop and seek advice before taking any further step.
There are several of us siblings, am I liable for the whole debt or only for my share?
If you accepted outright, once the estate is divided the creditor can claim the entire debt from you, and you will then have to ask your siblings for their part. If you accepted with benefit of inventory, you answer only up to the value of your share of the estate. Each sibling decides separately, and whatever one renounces accrues to the others together with its debts.
Do I need a lawyer to renounce or to accept with benefit of inventory?
To renounce, when you are certain the estate is insolvent, you are the only person called and there are no minors, you can go straight to the notary and paying a lawyer is not worth it. If there are several heirs, minor children, a business, guarantees, a notarial demand already served or genuine doubt about whether the assets cover the debts, the decision requires measuring the estate and choosing the right deed and the right order, and there the lawyer’s fee is small against what is at risk.