Unlike in Germany, inheritance in Spain does not pass to the heirs automatically; a declaration of acceptance is required. However, as this can also be declared by conclusive behaviour, there are no major practical differences. „Conclusive behaviour“ here refers to the typical behaviour of the heirs (administration of the estate, disposals, etc.).
However, if the estate includes a property in Spain, the inheritance should also be declared for notarisation. Otherwise, the property cannot be transferred to the heirs, Art. 14 Ley Hipotecaria.
Acceptance of the inheritance brings together the estate and the heir's own private assets. This means that the heirs are also liable with their personal assets for the liabilities of the estate after acceptance, Art. 1003 CC.
Limitation of liability and cancellation
Acceptance subject to the creation of an inventory has the effect of limiting the liability of the heirs to the estate (Art. 1023 CC) and of separating the heir's assets from the estate's assets. The effects of acceptance shown above are thus eliminated. A corresponding declaration must be made before a notary or the competent judge or, if the heir is abroad, before a consular official who is authorised to do so (Art. 1012 CC). German heirs can therefore also make the declaration at the Spanish consulate in Germany. The inventory must then be drawn up, which must include all asset and liability items. Errors can lead to unrestricted acceptance.
If you are certain that the estate is overindebted and there are no other reasons in favour of accepting it, the inheritance should therefore be disclaimed. The waiver can also be made before a German court, see Art. 13 EU Succession Regulation. However, it is unclear whether the effects of the declaration take effect when it is made or whether the court with jurisdiction over the entire inheritance case must first receive it. Additional legal advice should therefore be sought in any case. If you have any further questions, please contact your specialist inheritance lawyer in Düsseldorf and Krefeld, Dr Michael Gottschalk.