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.
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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:
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.
Disposition of Property – The Will must state at least one decision regarding who is entitled to inherit property.
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.
Writing – Most provinces require a written Will. Few states allow oral wills, and only in very specific circumstances.
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.
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.
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:
- Decide how you would like to divide your assets
- 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.
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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.