Inheritance and succession lawyer in Mallorca

The succession opens at the moment of the person's death (the deceased, or causante): from that moment rights pass to the heirs and the time limits for dealing with the inheritance begin to run. Although the deceased no longer owns the assets, the estate is not left in limbo: it enters a transitional state of hereditary co-ownership until the heirs accept and divide it.

The first steps are always the same. The death certificate is obtained and a certificate is requested from the General Registry of Last Wills (Registro General de Actos de Última Voluntad), which shows whether the deceased made a will and before which notary; it cannot be requested until fifteen working days have passed since the death. With that certificate, an authorised copy of the last will is requested. If there is no will, a declaration of intestate heirs is processed.

From there, the heirs and legatees are identified, an inventory is made of assets, debts and accounts, a decision is taken whether to accept, renounce or accept with benefit of inventory, inheritance tax is filed within six months of the death and, finally, what is inherited is divided and registered. The formalities should be organised from the outset, because some time limits cannot be extended.

There is no single, uniform time limit. The Civil Code, which applies on a supplementary basis in the Balearic Islands, sets no maximum time for accepting or repudiating, and the right to do so may be exercised over a very long period, of up to about thirty years. In practice, however, specific time limits do matter: inheritance tax must be filed within six months of the death, extendable by a further six if requested in time, and the municipal plusvalía tax has an equivalent period.

In addition, any interested party (a creditor, another heir or a legatee) may apply to a notary to require the person called to inherit to make a decision. From receipt of the notification, that person has thirty calendar days to accept outright, accept with benefit of inventory or repudiate. If there is no reply, the person is deemed to have accepted outright. And anyone wishing to accept with benefit of inventory generally has thirty days from learning of being an heir to request the inventory before a notary.

The decision is irrevocable and renunciation must be made before a notary, by public deed. Some acts (collecting a debt owed to the deceased, selling an asset, using their accounts) may be interpreted as tacit acceptance. So, if in doubt, do nothing with the assets before taking advice.

If a person dies without a will, or with a will that does not dispose of all their assets, intestate or statutory succession opens. In the Balearic Islands this succession is governed by the Civil Code, with the particular features of Balearic civil law, above all the rights of the surviving spouse (Article 45 of the Compilation) and the effects of definition pacts (pactos de definición). The order of succession is generally: children and descendants; failing them, parents and ascendants; then the spouse; then siblings, nephews and nieces and other collateral relatives up to the fourth degree; and, finally, the public authorities.

Since the 2017 reform of the Compilation, where there are no relatives entitled to inherit, the estate passes not to the State but to the public authorities of the Balearic Islands (the Autonomous Community, island councils and town councils, according to the regulations in force). The surviving spouse retains their forced heirship rights in usufruct, the extent of which depends on who else inherits.

The heirs are determined by a declaration of intestate heirs, processed before a notary (acta de notoriedad) or, in some cases, before the court. This is slower, more expensive and more prone to dispute than an inheritance with a will, and may produce a division different from what the deceased would have wanted. Making a will, even a simple one, avoids many problems.

The legítima is the part of the estate that the law reserves for certain relatives (forced heirs), so that the testator cannot freely dispose of it. In Mallorca and Menorca, the forced heirs are the children and descendants, the parents (failing descendants) and the surviving spouse. Ibiza and Formentera have their own regime, with differences, for example, in the entitlement of parents and the spouse.

The amount depends on who else inherits. The entitlement of children and descendants is one third of the estate if there are four or fewer, and one half if there are more than four. That of the parents, where there are no descendants, is one quarter. The surviving spouse is entitled to the usufruct of one half of the estate if inheriting with descendants, of two thirds if inheriting with parents and to universal usufruct in other cases.

In Mallorca, the legítima is understood as a portion of the assets of the estate itself, which is why forced heirs must take part in the partition. It may be extinguished by a definition pact, under which a descendant renounces it in exchange for what has been received during the testator's lifetime. If a forced heir does not receive their due, they may claim it; each will should therefore be reviewed against the forced heirship rules before anything is divided.

A joint will (testamento mancomunado) is one made by two or more persons, normally spouses, in the same act and the same document, whether for their mutual benefit or that of a third party. The Civil Code prohibits it (Article 669) and the civil law of Mallorca does not allow it, unlike other territories with their own law, such as Aragon, Navarre or the Basque Country. Spouses may make separate wills, each in their own deed and often with coordinated content, and each may freely revoke their own.

What Balearic law does offer is a more powerful alternative: succession pacts, governed by the Compilation and by Law 8/2022 on voluntary contractual succession in the Balearic Islands. They allow succession to be arranged in a binding way, by agreements that cannot be unilaterally revoked. Notable among them is the definition pact (in Mallorca and Menorca), under which a descendant renounces their forced heirship in the succession of their ascendants in exchange for a gift or compensation.

If you are a foreign national and have a joint will made in your own country, it may be valid in Spain in certain circumstances (for example, if you have chosen your national law as the law applicable to the succession), but you should review it with a lawyer before relying on it.

The main one is Inheritance and Gift Tax (Impuesto sobre Sucesiones y Donaciones, ISD). The Balearic Islands apply a 100% allowance on the tax due for heirs in Groups I and II (descendants, spouse or stable partner meeting the requirements, and ascendants), so that, in practice, a direct family inheritance pays no tax. This allowance requires certain conditions to be met, such as the declared value of properties not exceeding certain limits relative to their cadastral reference value. Collateral relatives (siblings, uncles and aunts, nephews and nieces) have partial allowances, and other heirs are taxed on the progressive scale.

Even if there is no tax to pay, form 650 must be filed within six months of the death, extendable by a further six if requested before expiry. Failure to do so may lead to penalties and put the allowance at risk. In addition, an heir receiving properties must take into account the municipal plusvalía (Tax on the Increase in Value of Land), with a period of six months from the death, extendable to one year; many town councils grant allowances on this tax for inheritances between close relatives, and the current ordinance should be checked.

Notary and Land Registry costs are added to the taxes. And if the heir later sells an inherited property, personal income tax is payable on the gain, with the acquisition value resulting from the inheritance. Careful planning of the partition helps to avoid overpaying.

Yes. No one is obliged to inherit. If the deceased's estate has more debts than assets, you may repudiate the inheritance. Renunciation must be made before a notary, by public deed, and is irrevocable. If you renounce, you are not liable for the deceased's debts, but neither do you receive anything, and the inheritance passes to those next in the order of succession, normally your own descendants, who must in turn decide.

If you are unsure of the real state of the inheritance, there is a third way: accepting with benefit of inventory (Articles 1010 et seq. of the Civil Code). You accept, but you are liable for the debts only up to the value of the inherited assets, and not with your personal assets. It is requested before a notary, who summons creditors and legatees and draws up an inventory, within the statutory time limits. The alternative is outright acceptance, which means being liable for the debts even with your own assets, and which sometimes occurs unintentionally through acts that amount to tacit acceptance.

Before deciding, you should gather information: a certificate of bank balances, debts to the Tax Agency and Social Security, loans and guarantees, and an inventory of assets. And do not dispose of the deceased's assets until you have decided. A timely renunciation avoids problems that later have no solution.

The will prevails, within the limits of forced heirship. If the testator appointed heirs with shares (for example, equally to their children), each receives that share of the whole estate, and the legacies are paid first. If the testator appointed a sole heir or disposed of specific assets, that wish is respected provided that it does not prejudice the forced heirs, who may claim what they are due.

The process is as follows: the will is examined, an inventory and valuation of the assets are made, debts and legacies are paid, compliance with forced heirship is checked, and the lots are formed and allocated. This may be done by the testator appointing a partitioner (contador-partidor) or executor, by the heirs by mutual agreement or, failing agreement, by a court-appointed partitioner (contador-partidor dativo), requested from the court by heirs representing at least half of the estate.

When the heirs cannot agree on the division, any of them may request judicial division of the estate (Article 782 of the Civil Procedure Act), a slower and more costly procedure. It is therefore always worth trying to reach an agreement, with a division documented in a partition document signed by all.

It depends on who lives there and what the will provides. Until the estate is divided, the home belongs to the hereditary co-ownership: the heirs are co-owners and must agree to use it, let it, sell it or allocate it to one of them, who compensates the others. If the surviving spouse lived with the deceased, they have forced heirship rights in usufruct that may affect the home, and it is common for the testator to have left them a life usufruct of the house.

There are other practical matters that should not be overlooked: owners' association costs, property tax (IBI) and insurance continue to run; heirs who do not live in the house may seek compensation if another heir uses it exclusively; and in order to sell or mortgage it the inheritance must be accepted, allocated and registered in the name of the heirs, or all of them must take part. If there are forced heirs, they must take part in the partition.

If the home was rented, the contract may continue if the person who lived with the deceased (spouse, partner or children under certain conditions) takes over within the statutory period, which is short; the landlord must be notified in writing. In any event, decisions about the home should be taken as soon as possible, to avoid disputes and unnecessary costs.

Yes, within limits. An heir may assign or sell their hereditary right, that is, their share of the estate as a whole, even if the assets have not yet been divided. What they cannot do is sell a specific asset on their own (for example, a flat) before it has been allocated to them, because while the inheritance is undivided the asset belongs to all the heirs in common. Selling a specific asset requires the agreement of all or prior allocation.

In addition, the other co-heirs have a right of redemption (retracto): if an heir sells their right to an outsider, the others may step into the buyer's place, paying the same price, within one month of learning of the sale (Article 1067 of the Civil Code). It is therefore advisable to give verifiable notice before selling.

The heir's own inheritance tax, which must be filed even if they sell, and the taxes on the sale must also be taken into account. And, in Mallorca, the forced heirs must take part in the partition. If you buy another heir's hereditary right, you should analyse carefully what you are buying, because the liabilities are inherited as well.

A holograph will is one written by hand by the testator, who signs and dates it. To be valid, it must be written entirely in the handwriting of an adult, stating the year, month and day, and bearing a signature. It is not authorised by a notary and no witnesses take part, so its validity is not taken for granted: it must be verified.

Whoever holds the will is obliged to present it to the court of first instance within ten days of learning of the death and, in any event, it must be formally recorded (protocolizado) within five years of the testator's death; otherwise it loses its effect and liability may arise. The court summons the relatives and verifies the authenticity of the handwriting and signature, with expert assistance if necessary, and, if confirmed, orders it to be notarially recorded.

Until this step has been completed, the will cannot be used to register assets or to divide the inheritance. The legal heirs may challenge it if they doubt its authenticity. The process is therefore often slow and contentious, and anyone wishing to make a will is advised to go to a notary, with whom the will is far more secure and far quicker to execute.

If the deceased was habitually resident in Mallorca, the European Succession Regulation (650/2012) confers jurisdiction on the Spanish authorities and generally applies the law of the country of last habitual residence, in principle, therefore, Balearic civil law. However, a person may choose in their will the law of their nationality to govern their entire succession (professio iuris), which is worth considering if you have assets in several countries. There is a European Certificate of Succession that makes it possible to prove status as an heir in other Member States.

As a non-resident heir you will need an NIE, a Spanish bank account and, if you cannot travel, a notarial power of attorney (normally apostilled and translated) so that someone can represent you before the notary. Foreign documents, such as death certificates and wills, may be submitted with an apostille and sworn translation.

There is an important tax difference: if the heir is resident in the EU or EEA and the assets are in the Balearic Islands, the Balearic regional rules may apply (with their allowances); otherwise the State rules generally apply, which are usually considerably more expensive, and there may be double taxation with the country of residence. It is therefore essential to plan before deciding how to accept and divide.

The partition document records the entire division of the inheritance: the list of heirs and legatees, the inventory of assets, debts and charges, the valuation of each asset, the settlement operations and the allocation to each heir of the assets due to them. It is drawn up by whoever is charged with doing so (the heirs themselves, the partitioner appointed by the testator or a court-appointed partitioner) and must be signed by all interested parties or approved in accordance with the law.

Its importance is practical. It is the document raised to a public deed in order to register the assets in the name of each heir in the Land Registry, to change the ownership of accounts, vehicles and securities and to settle the taxes. A properly drawn-up partition avoids future claims, since any error in the valuation, forced heirship or allocations may give rise to challenges.

In Mallorca, moreover, the partition requires the participation of the forced heirs, so the document must respect their rights. If there is disagreement, it is prepared with a court-appointed partitioner or the matter goes to court. Devoting time to preparing the document is the best guarantee that the inheritance will be closed once and for all.

A legacy is a testamentary disposition by which the testator gives a person (the legatee) a specific asset or right, such as a property, a sum of money, a usufruct or a vehicle, without making them an heir. An heir, by contrast, succeeds the deceased in the estate as a whole, that is, in their assets, rights and also their debts, in the proportion assigned to them.

The practical differences are significant. A legatee is generally not liable for the debts of the estate, although legacies are reduced if the estate is insufficient to pay the debts or to respect forced heirship. The legatee must request delivery of the legacy from the heir, unless the testator authorised them to take possession themselves, and may accept or repudiate it. Inheritance tax is payable under the same rules as for heirs, according to the relationship.

A common legacy in the Balearic Islands is the legacy of usufruct in favour of the surviving spouse. It must be drafted with care: if the asset left no longer belongs to the testator at death, the legacy may have no effect, and an excessive legacy may infringe the forced heirship of the children. A will should therefore be drafted with professional advice.

There is no single tariff: the lawyer's fees depend on the complexity of the case (number of heirs, assets, disputes between them, the presence of non-resident heirs or of assets in several countries) and are agreed in writing before work begins, by means of an engagement letter (hoja de encargo). They are usually set as a fixed amount for the matter or as a percentage of the value of the estate, with the possibility of quoting separately for any contentious stages.

In addition to the lawyer's fees, there are other costs that do not depend on the lawyer: notary fees, which are regulated by law and depend on the value of what is recorded in the deed; Land Registry fees; the administrative agency, if handling the taxes; charges for certificates and, where applicable, the cost of valuations or expert reports. And the taxes (inheritance tax, municipal plusvalía), which are paid to the authorities.

Before we begin, we will give you a clear quotation, with a breakdown of what it includes. Instructing a lawyer usually saves money and time, because it avoids mistakes over time limits, makes proper use of the Balearic tax allowances, prevents disputes between heirs and allows assets to be registered without incident.