What is the role of the Notary public in Spanish inheritance processing?
The notary guarantees the legitimacy of the documents in which it intervenes, for this reason, it provides citizens with legal security in the extrajudicial sphere. He is a public official whose intervention makes private documents public and authorizes them for this purpose with his signature.
One of its functions is to inform and advise citizens on matters of public records on facts, testamentary issues and inheritance law, among others.
It also performs document custody work in the so-called notarial protocols. The notary is obliged to maintain neutrality in his acts, which distinguishes him from lawyers, who must take part and be on the side of their clients or represented parties.
Situations related to inheritances in which a notary intervenes:
- Wills
When making the will, the notary is an essential figure. The notary intervenes with a professional will writer who guarantees that the content and form will be fulfilled in accordance with the law. It also guarantees that the will does not get lost or misplaced since the notary keeps the original and what he delivers to the person who makes the will (testator) is simply a copy.In order to obtain the original, you will have to access and request through the General Register of last wills, that it be known which was the last testament at the death of the testator. The notary will guarantee that while the testator lives, the will will be secret and confidential. - Declaration of intestate heirs
The competence of this type of files is completely in the hands of the notary. This type of document is made when a person dies without leaving a will. The heirs must compulsorily process the declaration of intestate heirs so that they can be named and be able to access the inheritance.This declaration of heirs will be processed in an act of notoriety authorized by a Notary Public and will act in the place where the deceased person had his last habitual residence, or where most of his patrimony was, or in his place in the place where would have died, provided they were in Spain, at the request of the applicant. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent.In this act, the Notary declares who are the family members or heirs, their identity and the rights and inheritance that correspond to them by law. It will also state those heirs that may not be accredited according to their judgment to be able to inherit and those that are but have not been located. - Partition of a succession statement
The partition of a succession statement is the document where the partition of an inheritance is to be collected and the part that corresponds to each heir in accordance with the will or the rules of succession. It will be mandatory to do so as long as there is no will and when there is more than one heir. This document must also be prepared whenever there is real estate in the inheritance to be distributed and they want to be registered in the property registry for subsequent sale. The writing of the partition notebook is carried out by the party accountant, usually it is the figure of a specialist, a lawyer with legal knowledge and it has to be ratified before the figure of the notary, so the notary is a mandatory figure.
Problems that notaries may have when processing inheritances or documents
By not being able to locate any of those named in the will. All those called to inherit must accept his call for the acquisition of the inheritance to occur. The Civil Code requires that all of them jointly give their consent, so, in case of not locating an heir or several, we could not carry out the partition.
When the heirs are foreigners and there are no records of those people in Spain. If the heir is unaccounted for, it is difficult for him to go to his appeal and therefore also for the processing by the notary to be carried out.
Because documentation from third countries is needed that the notary from Spain cannot manage: judicial authorizations of minor heirs, resignations abroad, awards, acceptances, copies of foreign wills, certificates (birth, marriage, death, domestic partners … ). If after two months from the summons to the interested parties none had appeared, the inheritance will be declared vacant and the process will begin to, through administrative means, declare the State or the Autonomous Community heir.