Types of wills in Spain

There comes a time when everyone thinks about making a will. This generally responds to the need to leave everything well tied up for the moment when we pass away. In fact, it may be an idea that you are currently mulling over. However, do you know what types of wills exist? As lawyers specialising in inheritance and wills, we would like to talk to you about them in depth.

The types of wills that can be made

Common wills

Within this category there are, in turn, three different types. As their name suggests, they are the most common in Spain:

The closed will

In this modality, the testator, who is the person making the will, informs his or her heirs that his or her last will is expressed in a sheet of paper that has been delivered to a specific notary so that, at the time of death, they may go to him or her to read it.

The law specifies, in this respect, that it must be typed or, failing that, written in his or her own handwriting. In both cases, it must be signed at the end. If you are unable to write or sign it, you will have to indicate why someone else has done so in your name. This may be the case, for example, for persons who, although their mental faculties are intact, are severely handicapped or blind.

The deposit with the notary must be made in an envelope that prevents the contents from being removed except by tearing it open. The notary will draw up a record of the execution of the will and place it in the same envelope as the will. The testator may also take it with him or her or appoint a third person to take care of it.

The notary or that person, when the testator's death occurs, must notify the competent judge within a maximum of 10 days of becoming aware that the testator has died. If he fails to do so, he will be solely liable for any possible damages caused by the delay.

It should be noted that, in the event that the holder loses, destroys or is the victim of theft of the document, in the event that he/she can be held responsible for what happened, he/she will lose his/her right to the inheritance, if he/she has one. 

The open will

This is another very common type of will which, in all cases, once it has been drawn up, must be handed over to a notary. In addition, two witnesses must be present if the testator does not know or cannot sign, is blind, does not know or cannot read the contents of the will, or if the notary expressly requires it.

If there is a danger of death or epidemic, it can also be carried out in the presence of three or five witnesses respectively, without the need for a notary to be present. In such cases, the testament ceases to be valid two months after it has been signed without death. 

It should be remembered that not everyone can be a witness. For example, the blind, the deaf and dumb, those under 18 years of age, those who do not know the language in which the document is written, those who are not in possession of their mental faculties and the heirs and legatees who are named cannot perform this function. 

The holographic will

This can only be made in the testator's own handwriting. It must also bear the date on which it is made and the testator's signature. It will not be valid if, in spite of this signature, it has not been written by the testator himself.

The heirs have a maximum period of 5 years from the moment of death to present it to the judge of first instance corresponding to the testator's place of residence. However, in the event that the testator delegates it to a specific person, it is his or her obligation to inform the authority within 10 days from the time he or she becomes aware of the death. 

As part of the process, the judge will summon the witnesses he deems appropriate to attest that the handwriting of the will corresponds to that of the deceased. These are usually siblings, children, relatives in the ascending line and the spouse.

Once the judge has attested to the veracity of the will, it is formalised and the heirs have the possibility of initiating actions for the adjudication and partition of the inheritance. 

Special wills

In addition to ordinary wills, the regulation includes three other types of wills that are considered to be special wills. These are:

Wills made in another country 

Any Spaniard has the right to make a will outside his or her country of origin using the rules established in the country in which he or she makes it. The jurisdiction does not prevent it from being valid regardless of whether it is closed, open or holographic.

For their part, these subjects have the possibility, if they so wish and if it is more convenient for them, to draw it up according to Spanish rules and to hand it over to the Spanish diplomatic agent who is exercising notarial functions in the country in which they reside. 

The military will

It is only provided for in wartime situations. If the case arises, any person in the service of the army, whether a career soldier or not, may make a will before the doctor who assists them in the event of ill health, before the chaplain if they are religious, or before a high commander who holds at least the rank of captain. 

Any of these figures will be obliged to forward the will, in the first instance, to the corresponding headquarters and, subsequently, to the Ministry of Defence, which will be responsible for summoning the heirs. 

Interestingly, in this type of case, the testator may make a will orally before a minimum of two witnesses without compromising its validity, although it is true that, once the danger has passed, it will cease to be valid. In any case, these wills expire within a maximum period of 4 months once the testator is no longer in the war zone. 

The maritime will 

It can be open or closed and is only allowed to be made when a sea voyage is to be made. It must always be granted to another person on board. In this sense, if it is a merchant ship, it must be made in front of the captain and, if it is a warship, in front of the commander. Any two other persons must be witnesses.

This must be specified in the ship's logbook and, as soon as the vessel reaches land, it must be taken to a Spanish diplomatic representation, which will be responsible for sending it to Spain. These wills are valid for 4 months from the time of disembarkation. 

As you will have been able to see, Spanish regulations contemplate a wide variety of ways to grant a Will in order to safeguard the testator's intention regarding his or her inheritance in all kinds of situations. We hope we have been of help in resolving your doubts in this respect. Please contact us for further information.