Were you aware that there are different types of wills in Spain? At Stelae we will explain what the law in Spain is regarding wills and everything else you need to know about them.
What is a will?
The RAE dictionary defines a will as ‘a declaration that someone makes of their last will and testament, arranging assets and matters that concern them after they have died’.
From a legal point of view, a will is regulated by the Spanish Civil Code which defines it as the act whereby a person makes arrangements for all their assets, rights and obligations after their death.
In short, a will enables an individual to state what is to be done with their estate when they pass away.
Anyone over the age of 14 can make a will but there are exceptions:
- Disabled people when a notary certifies that they are unable to understand and express the meaning of their intentions.
- Those who at the time of writing a will are unable to express their wishes, even with the help of aids to do so.
In these two cases, as well as those under 14 years of age, wills cannot be made.
What kind of wills are there in Spain?
There are different kinds of wills in Spain, each of which has their own characteristics.
Holographic will
A holographic will is one that is made in the handwriting of the testator and must comply with the requirements established in the Civil Code. Failure to do so will result in it being declared null and void. How should it be made in order to be valid?
- The testator must be of legal age
- It must bear their signature, as well as the date (day, month and year)
- It must be certified before a notary within five years of the death (it must be presented by the person who has it in their possession within 10 days of the testator's death)
Furthermore, any words crossed out should be left by the testator with their signature and, if the testator is a foreigner, they can make the will in their native language.
Closed will
Another type of will in Spain is the closed will. In this will, the last wishes of the testator are not disclosed but, rather, are declared to be contained in a sealed envelope delivered to a notary. Its main characteristics are:
- It can be handwritten with the signature at the end.
- If it is typed or written by a third party, it must be signed on all pages and at the bottom of the will.
- If the testator does not know how to or is unable to sign, another person must sign, stating the reason for the inability to do so (on all the pages and at the bottom).
- Words crossed out or written between the lines must be left before signing.
Open Will
An open will is a kind of will where the testator expresses their last will and testament in front of a notary and with witnesses.
It is also possible to produce this type of will only in the presence of witnesses without a notary, in cases of imminent danger of death or epidemics where the presence of a notary would be difficult. However, if the danger is no longer present, this type of will ceases to be valid after two months.
Depending on the case, the number of witnesses required may vary.
Military will
A military will is a special type of will for soldiers in action, volunteers, hostages, prisoners and other military personnel.
It is drawn up before an officer who must be at least the rank of captain. The presence of witnesses is also required. If the testator is ill or wounded, the will may be made before a chaplain or doctor, and, if on detachment, before the commanding officer, even if they are subordinate.
It expires four months after the soldier has been on campaign.
Maritime will
A maritime will is another type of special will that is executed on board a warship or merchant ship during a sea voyage. It is made before whoever is in command of the vessel. It requires the presence of witnesses and expires four months after landing.
What does the law on wills in Spain specify?
The Civil Code regulates wills in Spain. In this regard, the regulations for making a will state that:
- It is a free and voluntary act
- It can only be made by the testator himself/herself
- It is an individual act (couples must make separate wills)
- It must comply with a series of requirements because it is a solemn and formal act
- It is a conclusive and definitive act
- It can be revoked and a new one can be made to replace the previous one
How do I know if my will is in the register?
The only way to find out if someone has made a will is to go to the Register of Last Wills and Testaments which is the entity that keeps the register of wills and testaments in Spain.
You can only go there when the testator is deceased so you will need to provide their death certificate. With this, you will request the certificate of last will and testament (register of wills) to find out whether your loved one had made a will and, if so, at which notary. You will then be able to go to the notary where the will was made in order to start the succession process.
If the will is not registered, the only possible scenarios are that a will has not been made or that it is unregistered. This would be the case with a holographic will, for example, where it would be in the hands of another person who is obliged to register the will before a public notary.
How much does a will cost in Spain?
It is not easy to determine how much a will costs in Spain as the price can vary depending on different factors. But, in general, it costs between 50 and 80 euros to formalise a will before a notary. This includes legal advice, drafting and registration of the document.
