How to divide an inheritance when one of the heirs is untraceable?

How to divide an inheritance when one of the heirs is untraceable?
Published on: 23 May 2022

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When one of the heirs is absent and the division of the inheritance or the distribution of the assets cannot be carried out, it is necessary to apply for a declaration of absence and to appoint a representative of the absentee so that the inheritance can be divided. Distributing the legacy is not an easy task, as it involves administering and dealing with different scenarios that need to be executed.

In order to distribute an inheritance, Spanish law requires the consent of all heirs, which is known as the unanimity requirement. However, one of the aforementioned situations that can occur and affect the liquidation is the absence of any of the heirs, which prevents unanimity and therefore the division. For this reason, and with all the complexities and perspicacies involved in the liquidation, division and distribution of the inheritance, we recommend that you seek out a good family lawyer.

What is a declaration of absence?

In cases where an heir has disappeared and there is no information about the person, the Civil Code states that a declaration of absence can be requested and a lawyer is appointed to protect and represent the person.

For this to happen, three things must happen:

  1. Disappearance of a person from his or her home or place of habitual residence without further information about him or her.
  2. There is no legal or voluntary representation of the missing person.
  3. Their assets are at risk.

These conditions are contained in Art. 183 of the Civil Code in which it is stated that a person who is not present at the place of residence or last place of residence shall be considered absent after one year from the disappearance of the heir or three years if the heir entrusts all his property to the beneficiary for administration.

In the case of inheritance, although the law does not set a maximum time limit for the division of the inheritance, the failure of other heirs to dispose of or divide the inheritance may be detrimental to them.

Who must and who can apply for a declaration of absence?

Article 182 of the Criminal Code defines who is entitled to apply for a declaration of absence. Such a declaration may be requested by family members, as well as by the persons involved in the fourth degree and the spouse. It may also be requested by official prosecutors.

However, it may also be applied for by any person who believes to be entitled to dispose of the inheritance.

How is the declaration of absence processed?

For this purpose, in addition to the statement itself, evidence of the person's absence must be provided.

The Department of Justice will accept the application and indicate the date and time of the appearance of the absent claimant to the relatives named in the original application and to the persons concerned. Likewise, the decision of admission will be published in the Official State Gazette and on the notice board of the town hall where the absent person last resided.

The Ombudsman may undertake the various measures of enquiry, investigation and defence that he deems appropriate. It is also possible to consent to the introduction of evidence if it is given at the time of the appearance.

Upon completion of any evidence and attendance, a Department of Justice lawyer will issue a legal notice of absence and appoint an attorney for the absence. This will be the representative responsible for verifying the absentee's identity, protecting and managing the absentee's assets, and performing the absentee's duties. This moment is important as it will eventually allow or unblock the situation to continue with the ongoing proceedings, in this case the division of the estate.

Who can be the representative of the absent heir?

The spouse, unless separated from the absent person, would be the first choice of the agent. This would be followed by the eldest child and, if applicable, would go from oldest to youngest. If both options are not possible, the representative will be the closest and youngest child of the missing person.

Finally, if either of these representatives would also not be possible, the competent authority will designate the person it considers suitable for the purpose as the responsible person. After appointing a legal representative, that person will assume management responsibility and will have to perform a number of functions.

How long does it take to divide an inheritance?

According to the law, if 30 years have passed since the date of the deceased, a part of the estate could not be claimed, even if we were entitled to that part of the estate.

With this situation removed, there is no set time limit for distribution among heirs, but it is important to collect the taxes as soon as possible, because if we delay in accepting the tax, the charges will increase and it will be more expensive for us to accept our inheritance.

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