1. Who can make a will in Spain?
As a general rule, the testator must be, at least 14 years of age, and legally capable to make a valid will.
Anyone of legal age can make this type of will.
The last will must be written entirely in the handwriting of the testator and shall be dated and signed by him on every page. It must be verified as genuine before a judge. It is required that the handwriting of the decedent be authenticated by witnesses, who must be the decedent’s closest relatives.
Once it is verified, the judge will enforce the will’s contents. The estate must be distributed in accordance with the provisions of the will.
This is the usual form of will that most people use in Spain. It is granted before a Notary, who will keep the original document in his files. The Notary will send a notification of the will to the Central Registry of Spanish Wills(Registro Central de última Voluntad) located in Madrid.
The Notary may request the presence of 2 witnesses, who can also be required in case the testator is blind or illiterate.
Neither the spouse and closer relatives of the testator cannot act as a witness, nor minors, blind, deafÂ deaf or dumb people can’t do it .
Executing this will you will keep secret your provisions putting them in an envelope.
You shall declare before the notary that your provisions are contained in the envelope and declare whether you have written them by yourself or it has been written by a third person, also you must declare whether you have signed it or it has been signed by a third person for you.
The notary then seals the envelope and signs it, then he files it and send a notification of the will to the Central Registry of Spanish Wills (Registro Central de última Voluntad) located in Madrid.
This will cannot be made neither by blind nor by illiterate persons.
Every will bears a number that refers to the file registered with the Central Registry of Spanish wills (Registro Central de última Voluntad) which keeps a copy of it. The certification number of Spanish wills are kept in this place in order to ensure that the estate is neither sold nor transferred illegally.
A legal copy of a will can always be found there. In case you don’t know whether the decedent made a Spanish will or not, or if the will is lost, you may request a certificate to the Central Registry under the deceased person’s name. If a will was granted by the deceased, the Registry will provide you with the number and the name of the notary who made it in the first place,this will enable you to get a copy of the will from the notary.
The certificate can only be applied 15 days after the testator’s date of death.
In order to be able to revoke a will, the testator must have the same mental capacity as required upon granting it.
The provisions of a will can be revoked even if the testator had previously declared his intention of not revoking them.
A will may be revoked by the execution of a new will, which may amend, replace or make ineffective all prior wills. It can also be revoked when the testator declares before a notary his intention to cancel or keep any of the provisions of the previous will.
If there exist more than one will granted, only the last one is legally valid. You can be informed about the number of wills the decedent made by requesting for a certificate to the Central Registry of Spanish Wills.
5. Nullity of a will
A will is null and void in any of the following cases:
- The “joint will” with provisions agreed upon by two or more persons.
- If the testator had no legal capacity to grant it.
- The will made by a testator who is subject to domination, fraud or duress.
- When the testator appoints as beneficiary a person who is unknown and cannot be identified.
- When the testator appoints as beneficiary a person who is not legally capable.
- If the testator had revoked the will .
- An olographic will is null if it is not submitted before the Judge within 5 years after the testator’s death.
- A closed will is null if its covers or the envelope containing it are damaged, or if the signatures are deleted, unless it can be proved that the testator damaged his will during a state of mental derangement.
Who is entitled to inherit the decedent’s estate in Spain and how it must be distributed?. Be aware that the following information is not applicable in the Spanish Regions of Aragón, Catalonia, Basque country, Galicia and Balearic islands, ask a Spanish lawyer for further information.
a) If the decedent died leaving a valid will, the persons entitled to inherit his estate will be the following:
- Compulsory heirs: The Spanish laws of succession provides compulsory heirs, who must inherit at least, one third of the decedent’s estate. This is called “la legítima“. Compulsory heirs of the deceased are as follows:
- First children of the deceased (whether biological or adopted) and grandchildren in case of children’s death.
- Second, parents or grandparents, when the deceased had no descendants.
- The surviving spouse must receive the usufruct either over one third of the estate, in case the testator died leaving children, or over half of the estate, when the decedent died without descendants while his ascendants were still alive.
- Voluntary heirs: The testator may leave part of his assets to the persons of his choice. Beneficiaries may inherit those assets exceeding the third of the estate named as “la legítima“. The surviving spouse shall receive the usufruct over third of the assets, or over half of the estate, when the decedent died without issue while his ascendants were still alive.
When there are no compulsory heirs, the testator may leave his estate to the persons of his choice.
Along with the compulsory and voluntary heirs, the legatees will inherit specific assets that the testator may have disposed for them.
b) If the decedent died intestate:
If the decedent dies leaving no will, the Spanish law of succession determines who must inherit. The decedent is considered to have died intestate in the following cases:
- When there appear to be assets which have not been included in the decedent’s will. These assets shall be distributed in the manner that the Spanish law provides for intestacy.
- When the heirs do not accept the will, or it is not accepted within the period legally required.
- When the inheritor has no capacity to inherit.
- When the will has being destroyed.
- When the will does not include all the compulsory heirs, or includes someone considered as compulsory heir when he turns not to be.
- When the will is null and void.
The Spanish laws of succession set out the following hierarchy of inheritors in case of intestacy:
- Children: The decedent’s children and their descendants will inherit in the first place. Either legitimate, illegitimate child or individuals adopted have the same succession rights.
- Parents or grandparents: They will inherit when the decedent dies without leaving children. They will inherit in equal parts.
- The spouse will inherit if the decedent has neither children nor ascendants.
- Collateral relatives: If the decedent had neither descendants, nor ascendants, nor spouse, his brothers and/or sisters will inherit equal parts of the estate. Nephews/nieces will inherit the portion that would have corresponded to the brother/sister deceased (brother/sister of the testator and father/mother of the nephews/nieces who shall inherit)
- Cousins will inherit in case there are none of the persons mentioned above.
- The Spanish Government will inherit when there exist none of the individuals mentioned above.
If the deceased was married under community property marital regime, which is the general regime for matrimonial property in Spain (though some Spanish regions such as Catalonia, Basque Country, etc. differ from this regime), half of the decedent’s assets do not form part of the estate, but continues to belong to the surviving spouse.
The other half of the estate less the charges must be divided intro three equal parts. The surviving children will inherit at least one third of the assets, which is called “la legítima“, another third of the assets must also be left to to the children, but the testator may decide how this is to be divided among children. The surviving spouse shall receive the usufruct of this third of the assets, and the inheritors cannot dispose of it freely until the surviving parent dies. The testator may leave the last third of his assets to anyone he pleases.
When the decedent died without descendants, the surviving ascendants must inherit one third of the estate, if there is a surviving spouse, and half of the estate, if he has no surviving spouse. When there are neither children nor ascendants, the surviving spouse shall inherit the usufruct of two thirds of the estate.
Disinheritance means the act of the testator that has the effect of depriving a compulsory heir of the property that would have otherwise received, according to the Spanish laws of succession. Disinheritance can only be made by leaving a valid will.
a) In general terms, the testator may disinherit a compulsory heir on the following grounds:
- When the testator’s parents had deserted, prostituted or corrupted their children.
- For using any act of violence or coercion to hinder a testator from making, modifying or hiding a will.
- If the inheritor had used any act of violence or coercion to force a testator to make or modify a will.
- The heir may be disinherited were he condemned for having attempted to take away the life of either the testator, his spouse, descendants or ascendants.
b) Specific reasons to disinherit children in Spain might be the following:
- If the descendants had refused maintenance or support to their parents, having the means to afford it.
- In case of mistreatment.
c) Specific reasons to disinherit the testator’s parents are as follows::
- In case the parents were legally deprived of paternal authority due to non-fulfilment of their legal duties.
- Having refused to provide food and nourishment to their child.
d) Specific reasons to disinherit to his/her spouse can be the following:
- To have refused maintenance to his/her child or the spouse, having the means to afford it.
- If the spouse had attempted to take away the life of either parent, in case of no later reconciliation .
If the disinherited legitimary challenges and disputes the disinheritance alleging the non-existence of the reason, the evidence that such cause did exist corresponds to the rest of the heirs.
The child and descendants of the disinherited person shall keep their rights as compulsory heirs
The reconciliation of the testator with the legitimary who has incurred in cause of disinheritance, leave the disinheritance without effect.
Acceptance is a declaration of the heir’s intention to inherit all rights and obligations that belonged to the decedent. He may accept through a public or a private document, it may also be accepted tacitly, by taking the assets he was left.
The heir may accept the inheritace in profit of inventory “a beneficio de inventario“, which means that the heir will only pay the decedent’s obligations up to the limit of the assets contained in the will, otherwise they shall pay the total amount of the debt even with their personal property. It is advisable that the heirs accept in profit of inventory when it is uncertain the deceased’s ability to pay the debts he contracted. The acceptance in profit of inventory can be made before a notary, a judge or before a consular agent, in case the heir is not in his country of origin.
The heir may renounce the inheritance by declaring it on a public deed before a notary or a judge. If the summoned individual repudiate an inheritance in prejudice of his creditors, these will be entitled to request from the judge that he authorises such creditors to accept the inheritance in the name and in lieu of the repudiating party, for the sole purposes of recovering their credits on the hereditary estate. The creditors then shall recover their credits on the hereditary estate. The remaining assets corresponding to the debtor heir, who renounced to the inheritance shall be shared among the rest of the inheritors.
Acceptance or repudiation of the inheritance shall be declared within 30 days after the death of the decedent.