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How to Draft a Will & Last Testament

Ensure your estate and assets are handled correctly in Spain

What is a Will?

A will is a legally-binding document that determines how your wealth will be distributed after your death. It establishes what happens to your assets, like cash or real estate, in the event you die rather than letting existing laws make decisions for you.

 

Wills are very common but they differ greatly from country to country. Spain doesn’t allow foreign courts to distribute Spanish assets, so a Spanish will will protect what happens your Spanish assets. Without a will, the estate will be distributed according to national law and sometimes the law can be interpreted and applied differently throughout the country.

What are the different types of Will?

Open will – This is the most common Will today because of its enormous advantages. It consists of recording the last Will with a notary and it gives the Testator the certainty that the Will is within the law. 

A notary ensures that all legal formalities are complied with and that the content of the will is legally binding. The notary is also responsible for the conservation of the Will and, through the General Register of Last Wills, ensures that the last Will is known at the death of the Testator. They guarantee of secrecy and confidentiality of the Will during the Testator’s lifetime.

Closed will – The notarial closed Will is also made before a Notary but is written by the Testator and delivers to the Notary in a sealed envelope. The Notary does not know the contents. 

Once the envelope has been delivered, the Notary records that the envelope was sealed, as well as other legal requirements, and the record is signed by the Testator and the Notary. Once the minutes have been recorded up by the Notary, the sealed envelope containing the Will may remain in the Testator’s possession or be given to another person for safekeeping. The Notary may also take possession of the Will.

Holographic will – This Testament is made by the Testator alone in their handwriting with the year, month and day it was made. Without these or of the Testator’s signature, the document is null and void.

This type of Will is problematic. They are often null and void due to errors and can also lead to disputes about the Testator’s capacity at the time of making the Will. Also, once the Testator has died, the heirs must follow a complex legal procedure to verify the authenticity of the Will and to notarise it, which makes the process complicated and expensive.

An Open Will is the most affordable and costs €40 to €50. While, a holographic will is often more expensive as it requires more formalities for its legalisation and validity.

Let us to do the work!

How can a Lawyer help me ?

Managing and processing an inheritance or succession is far from simple. There are many different cases and scenarios that can arise in any inheritance. Taking care of all of them personally is almost impossible without the help of a professional.

 

Besides drafting the document, we also register the document at the Ministry of Justice to validate it. The Last Will and Testament must be signed before a Public Notary and this can be done in Spain but also at a Notary’s office in your country. Any overseas document must be stamped and Apostilled and our fees do not include Notary costs.

 

The lawyer will also explain the differences between each of the wills in order to choose the one that best suits your needs. A lawyer can also recommend the best way to make a will in Spain that is tax efficient.

What are the requirements for Wills?

Each of Spain’s Autonomous Communities has its own laws for Wills, however the differeneces are mostly minimal. Generally speaking, the requiremnts are as follows:

1

Testator’s Capacity – A person must be at least 18 years old to create a Will. Some Provinces have exceptions for minors if they are married or serving in the Armed Forces. The Testator must be of sound mind, which means that they must be aware that they are making a will. The document must state the property at hand and the parties who will benefit. Many legal challenges surrounding Wills are based on the “sanity” requirement.

2

Disposition of Property – The Will must state at least one decision regarding who is entitled to inherit property.

3

Declaration – The Testator must declare that the document is their last Will and Testament. Handwritten Wills usually include a clause to this effect. Some provinces require the Testator to state orally that the document is their last Will and Testament in front of witnesses.

4

Writing – Most provinces require a written Will. Few states allow oral wills, and only in very specific circumstances.

5

Signature – The Will must be signed by the Testator. However, if they are physically unable to do so, some provinces allow the document to be signed by a witness.

6

Presence of witnesses – Most provinces require that the signing of the will to be witnessed by at least two people over 18 years old. Other provinces require witnesses are not entitled to benefit from the Will. The witnesses may be subpoenaed at a later date to verify their signatures and the Testator’s capacity, so many must submit an affidavit at the time of signing the Will.

7

Execution – The Will must statewhere it was signed, the date, and the witnesses that were present.

The Process of Getting a Will

Drawing up a Will is simple. You just need to inform a Notary how you want your assets to be distributed. There are two different steps: 

  1. Decide how you would like to divide your assets 
  2. Inform the notary to make the Will, so it can become effective. 

It’s important to work with a Lawyer on the fair distribution of assets. Clients have different needs and are exposed to different tax outcomes based on their decisions and circumstances. Also, a lawyer can act as a witness and will ensure criteria, such as sound mind, are met.

Find you Immigration Lawyer

Alejandro

Alejandro Cano

Associate - LLM Abogado ( El Salvador )
Julia

Júlia Cleries

Real Estate Specialist
Antonio Torres

Antonio Torres Valdés

Head of Real Estate Department
Juan Diego Muñoz

Juan Diego Muñoz

Real Estate Specialist

Frequently Asked Questions

A Will is very important as it avoids future problems for the inheritors and reduces the time and money spent on litigation. Also, if there is no Will, the estate will be distributed according to the law. It’s essential to make a Will before any illness or accident occurs. 

You can visit the Register of Last Wills and Testaments and request a certificate. This document contains information on whether the deceased has made a will, who is the notary and on what date.

It can be requested by the possible heirs, the Will’s grantors and a Spanish or foreign citizen who needs it for certain procedures and requests it from abroad.

Testators may review their wills at different points in their lives to ensure that the document correctly reflects their wishes. For example, the Testator may wish to add or remove heirs in the event of a subsequent marriage or birth of a child. They may also appoint a new executor in the event of the death of the current executor.

The document must express the Testator’s wishes regarding material assets and financial situations. However, it can also include wishes that the person has for when they are no longer alive. Some of the most common are:

  • Acknowledging of children plus possible legal guardians.
  • Wishes for the time of the funeral and burial.
  • Disinheritance of relatives.
  • Assigning an executor for the distribution and administration of assets during the process.
  • Forgiveness of debts.
  • Appointment of substitutes in various areas and guardians of minor children.

The taxation of Inheritance and Gift Tax (known as ISD) varies greatly by Autonomous Community. This means that a taxpayer’s payment when a family member dies is very different depending on where the deceased lived at the date of death.

The amount of the assets and/or property being inherited and the degree of kinship with the transferor must be considered when settling the ISD.

The ISD law contemplates four degrees of kinship:

  • Group 1: all descendants and adopted children under 21 years of age.
  • Group 2: descendants and adoptees over 21 years of age, spouses, ascendants and adoptive parents.
  • Group 3: siblings, aunts, uncles and nephews and nieces.
  • Group 4: cousins and other more distant degrees of kinship.

In Madrid, for example, Groups 1 and 2 have a tax credit of up to 99% on inheritance and donations. 

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Radostin Denev
Radostin Denev
09:47 27 Oct 22
Comment from Radostin and Kaloyan Bulgaria:We could recommend working with Lexidy and especially with Juan Diego Muñoz to everyone. Our assessment is defenitely 10 out of 10!Strict professional who cover full end-to-end journey in buying real estate and successful relocation to Spain in our case. We highly appreciate efficient and effective approach and providing us and supporting us in each step of the journey in buying property in Spain. Without support of Juan Diego we would be lost, he provides us with daily support in most critical days before finalization of the deal and also there was not even a single question to which he could not provide us details in most structured way.Thank you Juan Diego Muñoz, thank you Lexidy we will be happy working together in the future.We wish you lots of success in your innovative and trustful approach in supporting your customers in a holistic way.Radostin and Kaloyan
Linda Sparling
Linda Sparling
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I worked with Juan Diego de Muñoz for my real estate lawyer. His help was invaluable to me! He worked with the sellers and real estate agents who were reluctant to engage in the due diligence process for the property I bought. He smoothed that over and helped me obtain a thorough check of my flat and the building it’s in, which yielded important information. Juan Diego made sure my every question and concern were addressed the same day that I raised them. Metaphorically, he held my hand through the whole process, but also made sure I was the one making informed decisions. I highly recommend him and Lexidy Law Boutique!
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Lexidy Law - sucessful Non Lucrative Visa assistanceI employed Lexidy Law to assist with applying for my Non-Lucrative Visa, now granted. I also used them to check my property rental contract.Cristina Vizoso was my legal contact and was highly responsive and reassuring.In the future, I will certainly be using Lexidy to assist with my TIE and to apply for an autonomous Visa. I highly recommend them for all your immigration to Spain needs
Rick Estrada-Stone
Rick Estrada-Stone
15:05 16 Jul 22
We are working with Lexidy for our immigration and real estate needs. Our real estate lawyer, Juan Diego Muñoz, has been amazing to work with throughout the entire process. His diligent communication during the real estate purchase has not only kept us informed every step of the way, but helped us to understand the differences and intricacies of purchasing property in Spain. We can't say enough great things about Juan Diego and the team at Lexidy.
Drew Mendoza
Drew Mendoza
16:12 06 Jul 22
Amazing service from Alejandro initially and then Juan. We were intending to purchase a property in Barcelona and Juan conducted all of the checks to ensure the deal was legitimate - it turned out that it was not as straight forward a transaction as initially expected and Juan helped us to avoid a potential financial disaster. We are so grateful and have 100% confidence in Lexidy's professionalism . We will certainly be using them more in the future and highly recommend them!
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I am looking to to buy my first property in Spain and had my intro call with Alejandro today- very pleased with the valuable insights gained and your guidance on the legal aspects of the Spanish property market, sales cycle, mortgage application process and risk mitigation. Alejandro, thank you so much for your advice and invested time, I'm genuinely looking forward to working together on this exciting project:)
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My wife, 2 children, and I wanted to move to Spain on a non-lucrative visa to experience something new following a stressful covid period. I had the privilege of working with Max and Gabriela, who were outstanding: Fluent English, nurturing us the whole way from initial sales contact through to landing in Spain, refreshingly responsive (usually within minutes, unlike many legal firms which work in units of days!), deeply knowledgable (added so much more value beyond paperwork), professional, experienced, and couldn't do enough for us. Top marks -- and that's from a customer with high expectations! Thank you for the quality experience and for helping us realise our dreams 🙂
RICHARD BRITTON
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We contacted Lexidy Law boutique when we recently moved from Cyprus to open a new chapter in our lives to move into a house in Brittany that we had bought 12 years previously. We had underestimated the twists and turns involved in obtaining residency in France - so we contacted Lexidy Law Boutique and were assigned Eleonore, an immigration lawyer well acquainted with French immigration laws. From the very beginning we realised she was determined that we should have a successful outcome and she guided us expertly to avoid all the pitfalls in the process of applying for residency. She even accompanied us to the prefecture and ensured that everything went smoothly - without her presence we might well have not succeeded.We thank and highly recommend Eleonore and Lexidy Law Boutique.
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We have just completed the purchase of a new build apartment in Catalunya. Lexidy were recommended to me by a colleague who'd relocated from the US to the Costa Brava. As non Spanish/Catalan speakers, it was a great relief to have people we could trust working on all aspects of the purchase - including arranging a bank account, NIE's and the wifi..! From the initial meeting over Zoom to the final transaction Carlota and Antonia provided first class service and communication. And by providing them with Power of Attorney it meant we could do most of the things we needed to do without leaving the UK.
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Michelle Swallow
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18:18 25 Sep 21
We recently retained the services of Lexidy Law Boutique to file our non-resident tax returns. As US citizens who own property in Lloret de Mar, Spain we were unfamiliar with the complexities of the Spanish tax system. Fortunately, we were able to benefit from the considerable expertise of Jose Garcia, Head of the Tax Department at Lexidy. He explained the procedure in detail to us and was extremely diligence and thorough throughout the whole process. What could have been a challenging situation for us became a very smooth process because of the expertise and capabilities of Jose Garcia and his staff at Lexidy Law Boutique. I would highly recommend the services of Lexidy Law Boutique.
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Idriss Dhifallah
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Before being directed to Lexidy we have tried few lawyers but none was as reactive, professionnal as lexidy. Buying in spain is a stressful and lengthy process but having lexidy in our corner made us confident we will close everything smoothly. We have dealt with Antonio Valdes and Alejandro Cano both showed a very high level of professionalism and reactivity. The pricing is fair and they offer an all in solution for peace of mind. Can not recommend any better!
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17:06 23 Apr 21
I used Lexidy service for the purchase of a property and for an issue with an ex-employer.They helped me during the whole process of the purchase of the property.The conflict with my ex-employer was also resolved successfully i.e: it went to court and we won and that (awful) company had to pay.I would recommend using Lexidy.
Daniel Zuckerman
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I couldn’t be happier with my experience with Lexidy and their excellent attorneys. After months of trying unsuccessfully to navigate the maze of Spanish bureaucracy, I finally got the help I needed. Max Agazzi Paulet and his team were extremely professional and knowledgeable and were able to quickly give me the information I needed to successfully move forward with my application. Without hesitation, I would recommend Lexidy to anyone dealing with Spanish immigration law and/or real estate issues.
Michael Sandoval
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I have had the pleasure to work with a lot of Lexidy's departments. Working with Max Aggazi Paulet to achieve everything needed for my residency was incredible. he help endlessly until everything was accomplished. Soon after i began working with their Real estate department. It has been a journey and they have stuck with me every step of the way. They have gone beyond the scope of their duties to help my dreams of purchasing a property in Spain come to fruition. I would like to thank Alejandro Cano and Jordi Aranda for for everything. Last but not least through the entire Process I have had the absolute pleasure to work with Camila Broderson. She is a Gem. She has guided me in every step to work on opening my LLC in Spain and has also gone beyond the scope of her duties to assist and be available at any time. I plan to continue to work with team at Lexidy and would highly recommend them to everyone. Thank you Lexidy team for everything that you have done so far! I look forward to continuing our partnerships and friendships!
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