It’s not difficult to draw up a will in Spain. But a lack of proper advice and planning can mean you overlook the problems you will pass on to your heirs….
How to make a will in Spain
There are two main ways of making a last testament in Spain, if we ignore certain very specific and rare cases (such as military or marine wills, etc). They are:
- testamento ológrafo: This is a private will (known in English as an Olographic will) which must be handwritten by the testator (person who is making the will). It must make express mention of the year, month and day it was written, and must be signed by the testator.
This type of will is usually contentious as it is open to abuse by the heirs – anyone who feels aggrieved can attack the contents and attempt to have it struck down. It also fails to have any independent advice upon its drafting, which may mean that it contains clauses which cannot be executed under the law.
Also, if the only copy is destroyed then there is no proof of it ever having been written.
However, this type of will can be useful in an emergency situation.
- Testamento abierto notarial (open Notary will): This is the most common type of last testament being drawn up today. It is drawn up and witnessed by a Notary Public, who will also ensure that all the clauses are in accordance with the law of inheritance.
This type of will is notarised and entered into a public register meaning that it cannot be altered or modified by a third party. You are of course free to modify or annul it as you wish in the future.
The Notary will keep the original and give you a copy. A central register keeps track of all last testaments, ensuring that the authorities always know which was the most recent copy that you signed. The will is kept private during your lifetime and nobody will have access to its contents or even be informed as to its existence.
Contents of the will
If you are a foreign national in Spain, you may want to ask for the inheritance law of your nationality to have precedence over Spanish law. Click here for an article on this.
Drawing up a will is very simple, but requires close attention by a professional in order to ensure that you are taking the best decisions for your heirs.
You will need an NIE number in Spain. If you are making express mention of property, it is best to examine their deeds (escrituras) in order to make sure of any contrasting claims such as named owners or mortgage holders, etc.
Debts that will be carried over to your estate also need to be contemplated and a plan of action taken. For example, in many circumstances death insurance may be advisable in order to prevent your heirs being hit with a large and unexpected debt in the event of your death.
Do I need witnesses?
In most cases, no witnesses are needed, just the approval and signature of the notary.
Form of the will
You don’t have to make express disposal of all your assets in the will. The most frequent legal form is to make all children equal benefactors of your estate without making express mention of assets, unless you want something to go to a specific person. This is called a legacy.
A legacy can always be made in the will, but you must respect the right of equal inheritance between obligatory heirs. A legacy can be to a family member or anyone else, including a charity or other institution which is legally constituted.
But those who benefit from a legacy only receive that which is legated to them. The rest of your estate goes to your heirs. Your heirs are also liable for any debts which your estate has accrued.
An heir is not obliged to accept an inheritance. They have a period of time in which to refuse the inheritance, in which case the assets and debts of the estate are then divided afresh between the remaining heirs.
Do I need an executor?
This depends upon the form of your estate. In the event that you expect difficulties to arise in the division of your estate, it is recommended to designate an executor (albacea) and counter-divider (contador-partidor). Their task is to manage the estate and ensure it is executed correctly according to your last wishes and the law of inheritance.
These people can also act as legal guardians of under-age children or other people in the legal care of the testator.
How difficult is it to make a will?
It is very easy to make a basic will. Anybody can make an appointment with a Notary public, who will assist in drawing up the basic paperwork and sign it.
However, if you are a foreign national with Spanish assets you are advised to take independent legal advice to ensure that your will is properly drawn up in accordance to your wishes.
It is frequent that an improperly drawn up will causes much heart-ache, illwill and financial cost to the heirs, which proper financial advice at the time of drawing up a will would have avoided.
Cervantes Alarcón can assist you and has special experience in the drawing up of last testaments of EU nationals resident in Spain. We can examine the different legal regimes open to you and advise you as to the best course of action.