In the will the person expresses what has to be done with his estate when his life ends. This concept encompasses both the act of disposing of his legacy and the resulting document.
Actually, this will to bequeath does not include all of his assets. The law recognizes the figure of forced or legitimate heir, who, regardless of the will of the testator, will obtain a part of the legacy.
Inheritances and wills are defined in articles 662 to 743 of the Civil Code. Any person over the age of fourteen who is in a position to express his will, alone or with help, has the right to draw up his will.
Types of Legal Wills
In Spain there are different types of wills. The choice of which one to choose for your case will be determined by the circumstances in which you find yourself.
What are the types of legal wills in Spain?
Although different types of wills are recognized, the common characteristic of all of them is that they ensure the legitimate expression of the will of the person who makes it. The difference lies in the formal mechanisms.
1. Notarized Open Will
As its name suggests, this will is drawn up before a notary chosen by the testator. The will of the testator is recorded in a public deed that is registered in the Registry of Last Wills. The original of this will remains in the possession of the notary.
The notarial open will ensures the legitimacy and legality of your document. The presence of a notary minimizes the risk that the will will be challenged or annulled due to formal defects or breach of the law. Also, it ensures the confidentiality and integrity of the content of the document.
presence of witnesses
When the person who is going to make the will does not have disabilities, only the presence of the testator and the notary is requested. But there are cases in which the presence of witnesses is mandatory:
- When the testator does not know or cannot sign the will.
-When he is blind or cannot read.
- When the testator or the notary consider the presence of witnesses essential.
Once the document is drafted, the notary will read it aloud. It will also be read by the testator if he can do so or by the witnesses. The document will then be signed.
2. Special Open Wills
There are two types of wills considered special. This condition is due to the circumstances that motivate its realization.
- Danger of epidemic. In these cases, the will can also be made without the notary. 3 witnesses are needed.
- Danger of death of the testator. In case of serious illness, fatal accident or other catastrophe, the will can be made without a notary, in the presence of 5 witnesses.
Special open wills must be formalized before a notary public once the testator has died within a period of three months. If this requirement is not met, they will not be valid.
On the other hand, these special wills will expire two months after the danger of death or epidemic has disappeared.
3. Holographic will
The orographic will is the one that has been drawn up by the testator himself. To be legally valid, it must meet the requirements described below:
- It can only be written by people of legal age.
- It must be written in the testator's own handwriting. Therefore, this type of will cannot be drawn up by people who do not know how to write or by disabled people who cannot do so.
-It will be signed by the testator and next to his signature will indicate the day, month and year in which it was made.
- In case of crossing out, erasures, amendments between lines, the testator must save them under signature.
-If the testator is a foreigner, he may write it in his native language.
The testator will keep his will in the place he wants. After the testator's death, whoever takes charge of the document must present it to the notary public within ten days from the knowledge of the testator's death. If whoever has the will in his possession does not comply with this condition, he will be responsible for the damages that may be caused to heirs.
The notary will notarize the will. In this action, he incorporates the document into the notarial protocol and ensures that its content complies with legal requirements. To do this, he will summon witnesses to ratify that the signature and handwriting are those of the testator. In case of doubt, the notary will proceed to a calligraphic test.
4. Closed Will
The will is closed when the testator draws up the way in which he wants his legacy to be divided and delivers the document to the notary in a sealed and sealed envelope. In other words, not even the notary knows the content of the will.
In the act of delivery, the testator will declare that the envelope contains his legitimate will. Likewise, he must inform if he has written it himself or another person. The notary will draw up an act stating the delivery and the statements of the testator.
The act shall be signed by the notary, by the testator and by a witness present at the act.
The testament shall remain in the power of the notary or of the testator himself. After death, the notary or whoever has the will will have a period of ten days to present it to the judge.
5. Will made abroad
A Spaniard who is outside of Spain for vacation or residence can make an open or closed will before the Spanish Consul of the country in which he is located. A consul is allowed to act as a notary in Spain.
If the testator makes his will following the laws of the country in which he is located, he must process the validity in Spain.
If you need a lawyer to draw up a will or to open an inheritance, do not hesitate to call us.