When a will is opened, do all the heirs have to be present?

The will is a document that reflects the last wishes of a subject, that is, how he/she wants to distribute his/her assets among his/her heirs once he/she has passed away. When his death occurs, it is necessary that they proceed to open the will, which implies making its contents known and, if necessary, executing its provisions. However, there are many nuances and considerations that must be taken into account in this regard.

When is a will opened?

In general, there is no time limit set by law to proceed with the opening of a will, except in two specific cases:

• First, it must be a holographic will or, in other words, it must have been written and signed by the testator in his own handwriting.
• The other exception is that it is a closed will, which implies that he/she has not revealed what his/her last will was.

In both cases, the opening must be made within five years from the time of death.

How long does it take to open a will?

Having clarified the previous point, it must be said that, in order to open a will, it is necessary to request first the certificate of acts of last wills. This is a document issued by the Ministry of Justice that can be obtained in person at its territorial agencies or online through the Electronic Headquarters. The only requirement is to present the death certificate.

As a general rule, the certificate of last will and testament takes around 15 calendar days to be issued and states whether the deceased has left a will or not. If so, any of the heirs can go to the notary and request a copy, which entails a series of administration costs. In other words, opening a will costs money.

In exceptional cases, the notary may request that the heirs present their identity documents, the original will and documents proving that the deceased was the owner of the assets shown. However, these are usually requested at a later date, when the time comes to execute the last will and testament.

Is it mandatory to open a will?

No, it is not mandatory. However, there are a number of important aspects to keep in mind, such as that the payment of the inheritance and gift tax must be made within a maximum period of 6 months. In addition, in case there are several heirs and one of them opens the will, the rest will be obliged to decide whether they want to accept it, reject it or accept it with benefit of inventory. To do so, they will have 30 calendar days.

At this point, it is important to remember that the opening of the will can be carried out by any heir or person interested in the inheritance. As we said before, the only requirement is to present before the notary the death certificate and the last will certificate. This is the reason why, except in the case of small estates covered by local laws, the figure of the notary is essential to execute the process.

So do all the heirs have to be present to open a will?

It follows from the foregoing that it is not. Moreover, it is impossible to know for certain in advance who all the heirs contemplated in the will are. Even if the forced heirs are known, the deceased could always leave the third of free disposition to other persons at his free will.

Another important note: if the question is whether the notary has to notify the heirs of a will, the answer is no. However, the testator may have requested it during his or her lifetime, in which case he or she must do so. However, the testator may have requested it during his or her lifetime, in which case he or she must do so. But it is important to emphasize that the notary is not obliged to assume this responsibility. This can be a problem for those heirs who do not know that they are heirs.

What happens if one of the heirs is a minor?

It will be necessary for the minor to have a legal guardian who will be in charge of administering the inherited assets until he/she reaches the age of 18, i.e., the age of majority. It is quite frequent that such guardian is appointed by the deceased himself in the will. However, if he/she did not do so, he/she will have to be appointed by a competent court.

Doubts, queries and conflicts with wills

The opening of the will can give rise to moments of controversy. For example, if one of the heirs considers that there are ambiguous or contradictory clauses. In such a case, in the first instance, the interpretation of the notary will be requested, although if the problem persists, it will be necessary to go to court.

It should also be remembered that the heirs are obliged to assume the debts of the testator if they accept the inheritance. For this reason, the figure of acceptance with benefit of inventory was created, which reduces their liability on the assets. On the other hand, in case there are assets abroad, it will be necessary to comply with the laws in force in their countries of origin. This may imply additional formalities to those mentioned in this article.

This is everything you need to know about the process of opening a will. As you may have noticed, there are many nuances about it. Therefore, if you have any doubts, please contact us. We have a large team of lawyers specialized in inheritances who will be able to provide you with advice and accompany you during the entire opening procedure so that you can preserve your rights throughout its course.