How to make a will?
How to make a will? Making a will may seem like a very complex task a priori, but it is a procedure within the reach of anyone, and in some cases the formalities are minimal, being possible to grant a will without the intervention of a notary public.
Below, we are going to see what this legal act consists of and what are the requirements required by law for each case.
When can a will be granted?
The Civil Code allows a will to be made from the age of 14, except in the case of holographic wills, i.e. handwritten wills. In which case the minimum age is 18 years (Article 688).
What are the requirements to make a will?
The Civil Code provides for several types of wills at the testator’s choice, and each one has to comply with different formalities.
Apart from the so-called special wills (which are maritime, military and foreign) and which are intended for unusual circumstances. Common wills are the types available in normal circumstances and have different requirements to meet in each case.
Requirements for granting an open will
The open will is the most common. It is carried out in person before a notary, and the presence of no other witnesses is necessary, except in the following cases:
- When the testator declares that he or she does not know or cannot sign the document.
- When the testator or notary requests it.
In both cases, there must be two witnesses. In addition, the presence of the following persons may be required:
- The so-called witnesses of knowledge, when the notary does not know the testator.
- Physicians who have recognized the incapacitated testator.
- The interpreter who must translate the will of the testator, because he uses a language different from that used by the notary.
To grant an open will, the testator must go to the notary with his/her ID card and the necessary witnesses. As set out, and communicate his/her will to the notary, which can be done orally or in writing, or by the means he/she prefers.
The place, year, month, day and hour of the grant shall be recorded and signed by all present.
Requirements for Granting a Closed Will
The closed will must be made in writing, and will be delivered to the notary inside a cover, closed and sealed, which prevents it from being opened without breaking it.
The notary shall draw up a record of the entire act of execution of the will. With the signature of the testator and the other persons who must attend. The notary will also sign the deed and seal it. Two witnesses may also be present if requested by the testator or the notary.
The closed will can be handwritten, just like the holographic will, but the difference is that. In the execution of the closed will, the notary will will have to intervene.
Requirements for Granting Holographic Will
As already mentioned, a holographic or entirely handwritten will is the only one for which the testator must have reached the age of majority.
Spaniards who are both in Spain and abroad can do so. Even if they are not admitted to that country by law. However, Spaniards who reside in an autonomous community where this type of will is not allowed will not be able to do so.
In order for the holographic will to be valid, it is only required that it be written in its entirety and signed by the testator, stating the year, month and day on which it is executed.
In addition, once the testator dies, the person in possession of the testator must inform the notary within 10 days of the death. And the will must be notarized, also before a notary, within a maximum period of 5 years.
What can be the content of the will?
The will can be as complete or incomplete as the person making the will wishes. All you have to do is make sure that the following conditions are met:
- Heirs and/or legatees can be named in the will, i.e,. People who will inherit universally (in general) or people who will only inherit specific assets, or in a private capacity.
- The testator may name the heirs and legatees he wishes. But he must respect the portion that corresponds to his forced heirs, called legitimate. Forced heirs are direct descendants and, in their absence, ascendants or widowed spouses.
- The legitimate estate in favour of the descendants will consist of two-thirds of the assets of the estate. One third must be divided equally among the forced heirs. The other third may be divided among them as the testator prefers. So that, if the testator wishes, he may use it to favour one heir over the others. The testator may therefore freely dispose of one third of the inheritance, with which he may benefit any person, without any limitation (Article 808).
In the event that the testator dies without leaving descendants. The legitimate in favour of his parents or ascendants will consist of half of the property. Although if the deceased left a spouse. The legitimate will consist of one third for the parents and one third for the living spouse.
Therefore, and in summary, the testator will only be able to freely dispose of one third of the inheritance if he has descendants. Or if he does not have them but is survived by his spouse and his parents or ascendants. If you are survived only by your parents or ascendants, you are free to dispose of half of the property.