Misappropriation of an Inheritance: the Offence under Art. 253 CP

Misappropriation of an inheritance is one of the most frequent forms of the offence of misappropriation under Art. 253 CP. It occurs when a co-heir, executor or administrator of the estate appropriates assets from the inheritance — money, real estate, jewellery, works of art — to the detriment of the other beneficiaries, having received them under an obligation to hand them over or distribute them. As specialist criminal defence lawyers in misappropriation of an inheritance, we explain the offence, the penalties, the delicate line between a civil dispute and a crime, and the defence.

What Is Misappropriation of an Inheritance

Art. 253 CP punishes anyone who, to the detriment of another, appropriates for themselves or for a third party money, goods, securities or any other movable property received in deposit, commission or safekeeping, or entrusted to them under any other title that creates an obligation to hand it over or return it, or who denies having received it. What is characteristic of the offence is that the initial possession is lawful: the heir or administrator lawfully receives the assets, and the offence arises later, when they decide not to return or distribute them and incorporate them into their own estate.

Typical Conduct in Inheritance Misappropriation

The most frequent forms of conduct include:

• Unilateral disposal of the deceased's bank accounts, before or after death.
• Concealment of assets in the estate inventory (real estate, jewellery, works of art, foreign accounts).
• Use of powers of attorney granted during the principal's lifetime to carry out transfers after their death.
• Sale of inherited real estate without the consent of the co-heirs.
• Appropriation of income generated by estate assets during the period before distribution.

Penalties under Article 253 CP

Art. 253 CP refers to the penalties for fraud:

• Basic form: the penalties of Art. 249 CP, that is, imprisonment of six months to three years.
• Aggravated form (Art. 250 CP): imprisonment of one to six years and a fine of six to twelve months when one of the circumstances of Art. 250 is present, such as the value of the appropriated assets exceeding EUR 50,000, the assets having recognised artistic, historical, cultural or scientific value, or the offence being committed with abuse of the personal relationship existing between victim and offender.
• Minor amount: if the amount appropriated does not exceed EUR 400, the penalty is a fine of one to three months.

The circumstance of abuse of a personal relationship is especially relevant in inheritance cases, where the family bond and trust between co-heirs is often the very basis the offender relies on to appropriate the assets. When the offending co-heir is the non-separated spouse, ascendant, descendant or sibling of the victim, and there is no violence, intimidation or abuse of the victim's vulnerability, the statutory excuse between relatives under Art. 268 CP (excusa absolutoria) may apply, leaving the conflict to be resolved through the civil courts.

The Line between a Civil Dispute and a Criminal Offence

Not every inheritance dispute amounts to a crime. For misappropriation to be found, the courts require several elements to be present:

• Lawful title of possession: the asset came to the accused through a lawful cause (administration, executorship, mandate).
• Obligation to return or distribute: there was a duty to hand the assets over to the co-heirs or to account for them.
• Unequivocal act of appropriation: disposal, concealment or refusal to return the assets.
• Intent (dolo): awareness that the assets belonged to someone else and the will to incorporate them into one's own estate.

A mere disagreement over the valuation of the assets, the distribution, or the interpretation of the will belongs to the civil sphere (estate division proceedings). One of the central planks of the defence is precisely showing that the conflict is civil, not criminal.

The Role of the Executor and the Administrator

The testamentary executor and the administrator of the estate hold a position of trust that heightens their responsibility. If the executor diverts funds, unjustifiably delays the distribution to benefit from the income, or favours one heir to the detriment of the others, they may incur misappropriation. Where what they do is exceed their administration powers, causing harm to the assets under management, the applicable offence may be unfair administration under Art. 252 CP, also punished with the penalties of Art. 249 or, where applicable, Art. 250 CP. A court-appointed accountant-distributor who manipulates the partition schedule may likewise face criminal liability.

Lines of Defence

The criminal defence against an accusation of misappropriating an inheritance is built on several fronts:

• Own inheritance right: showing that the accused was dealing with the assets in exercise of a legitimate right.
• No obligation to return the assets at the time of the disposal, or no clear and enforceable duty.
• Civil nature of the conflict: redirecting the dispute to estate division proceedings.
• Absence of intent: showing that there was no will to appropriate, only questionable management or a mistake.
• Documentary evidence: analysing the bank movements, the inventory and the estate accounts.

Each case requires an individual assessment of the evidence, without pre-judging the outcome and in strict confidence; instructing a misappropriation lawyer from the outset helps steer the conflict down the right path.

Criminal Defence in Misappropriation of an Inheritance

The criminal defence firm Alonso Sala, based in Madrid (Calle Velázquez 27) and covering the whole of Spain, defends co-heirs, executors and administrators in proceedings for misappropriation of an estate. We examine the title of possession, the existence of a duty to return the assets, the line with the civil dispute and the documentary evidence to build the most favourable strategy. You can find out more on our page on criminal defence in misappropriation of an inheritance.