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Community legislation on wills

Learn about the different types of wills, requirements and differences with legacies.

What are the types of wills?

In Spain, it is necessary to take into account the validity of wills granted according to the legislation of some Autonomous Communities such as Catalonia, the Basque Country or Navarre. But limiting ourselves to the Civil Code there are two fundamental types of wills and in both you can include as heir the NGO or NGOs of your choice.

1. Common wills

The open will is carried out before a notary who advises on the process, knows the content, normally drafts it and is responsible for its legality. You can choose the cause you want to collaborate with in your will and the Notary can help you to include it as an heir in your will or designate the solidarity bequest you want to allocate.In addition, the Notary or whoever succeeds him/her in the notary's office, is obliged to always keep the original, issuing as many copies as necessary. Despite being called "open" it is totally secret, and the Notary will not be able to communicate its content to anyone, except to you as testator, until death. The Notary informs the Ministry of Justice (Registro General de Actos de Última Voluntad) only of the existence of a will granted on the date and by the person who made it, but without indicating further details.

The open will is the most advisable, safest, most comfortable and most used modality. Its cost is around 40€, being the Notary fees a matter regulated by the Government at a national level.

To find the notary closest to you, simply search on this site.

Another common modality is the closed willThe notary public authorizes the act and keeps the closed and sealed document in the notary's office. The notary authorizes the act and keeps the sheet closed and sealed. The lack of advice from a legal expert makes this a dangerous will and, in addition, with more costs than the previous one. It has little practical utility but also by this method you can include a non-profit entity in your will or leave a solidarity bequest in its name..

The third modality in this category is the holographic will which would be drawn up in your own handwriting. It is subject to some minimal but indispensable formalities (date, unequivocal will, signature at the end...) and, in the case of choosing to collaborate with one or more non-profit organizations, they must be included as heirs or specify in writing the solidarity legacy you wish to donate.. It needs, for its effectiveness, of some special procedures with judicial intervention, at the death of the testator. It is sometimes a dangerous document because it lacks advice and is more costly than another, due to the subsequent judicial procedure.

2. Special wills

Military will: intended for army employees in wartime.

Maritime will: carried out by crew members or passengers on board a vessel.

Will made in a foreign country: the one made by a Spanish citizen outside the national territory, and in accordance with the laws of the country in which he/she is, or before a Spanish diplomatic or consular official, in accordance with Spanish Law.
Requirements for making a will

Contrary to popular belief, making a will is a relatively easy and profoundly important gesture. Not only does it allow you to protect your loved ones, but it offers the opportunity to include one or more NGOs to continue building a better world in the future.

There are two basic requirements to be able to do so:

  • Be older than 14 years old.
  • To be in full possession of one's faculties at the time of the making of the will. It will be valid if it is made by a person who was capable on the date of its execution, even if he/she later loses his/her mental faculties.

In the case of special wills, given their exceptional nature, the possibilities of making them are very circumstantial and limited. For the rest, there are certain formal requirements that accompany each of the different modalities.

Open will:
If it is done before a notary, as testator you have to go to the notary's office with your national identity card, which is necessary to identify yourself. After this requirement, you have to express your last will, that is, explain to the notary how you wish to distribute your assets. If you have thought that you would like to collaborate with the cause that has moved you during your life, you can choose one or more non-profit entities as heirs.You can also donate part of your assets to the organization of your choice.

We may do so in the manner that best suits us according to the law, in writing or verbally, with the simple condition that it is done by the testator himself.

With the data and information provided to the notary, he/she will draft the will according to the legal formalities. Once drafted, the notary will read the document. If, as testator, you are in agreement, you would sign it, thus expressing your conformity. The open will is the most frequent and safest type of will, since during the drafting, the notary can clarify all your doubts as testator and avoid problems that may arise later.
Closed will:
It is the common type of will that combines the secrecy of the holographic will and the advantages of the open will. The testator has to go to the notary, but after identifying himself, he only has to deliver to the Notary the envelope containing the will, indicating whether it is written in his own handwriting or by mechanical means. For this modality, in case you choose to include a non-profit entity in your will, you should write it together with the rest of your wills.. The notary would record the delivery and then read the minutes, which would be signed by the notary and you as testator. The notary will not know in any case its content.
Holographic will:
The Civil Code requires that the holographic will be written in its entirety in the testator's handwriting and signed by the testator, including the date (day, month and year) on which it is written. This will is not considered valid if it is typewritten or computerized, nor if it is written by another person. It must be written on paper and with a ballpoint pen (not with a pencil or other tools that can be erased) in the usual handwriting and signature, without erasures or writing between lines.

What are the types of wills?

Heritage

We understand inheritance as "the set of assets, rights and obligations that are not extinguished after the death of a person". But it is also important that solidarity is not extinguished and continues to be tangible in the projects of the non-profit organizations that you include in your will and that you have supported throughout your life.

The distribution of the inheritance is free on your part as testator. However, in every distribution, the Civil Code obliges you to leave a certain proportion of the assets to certain relatives - the forced heirs or legitimated heirs - and that responds to what is known as legitimate obligation. Inheritance includes not only inheritance in the strict sense, but also all donations made during life.

In the case of leaving descendants at the time of death, this set of assets formed by the inheritance plus donations is divided into three equal parts:

  • Strict legitimacy is the third of assets that cannot be freely disposed of and that will be destined to the legitimated, also called forced heirs. It is distributed among the children in equal parts and if one of them is deceased, his subsequent descendants inherit by right of representation, that is to say, by lineage.
  • The one-third improvementThis part is also not freely disposable, but it is available to a certain extent. The law establishes that the third of improvement must be distributed among children and descendants but not necessarily in equal parts. It is possible to benefit some children over others.
  • One third of free disposal is the portion that you as testator can leave to whomever you choose, family or not, and can be an individual or a legal entity, including any non-profit organization. If there is one or more non-profit causes/entities in the world with which you have always felt identified, you can choose to include them in your will once you have been informed about their work. This part of the inheritance would not be taxed as the non-profit entity is a legal entity and is not subject to inheritance tax and the income derived from the inheritance is exempt from corporate income tax as it is a non-profit entity declared of public utility.

In the case of marriage, your wife or husband has the right to be recognized, at least, the usufruct of the third of improvement.

However, in the case of death without descendants but with ascendants (parents or grandparents), these will be entitled to half of the inheritance, as legitimate. In this case, if your husband or wife is still alive at the time of death, he/she will be entitled to the usufruct of half of the inheritance.

Persons who die without ascendants or descendants, but with a husband or wife, must recognize to him or her the usufruct of two thirds of the inheritance.

This regulation contains exceptions in some Autonomous Communities, such as in Navarra there is only a formal legitimate share (it is enough to mention the legitimates, without the need to leave them assets), or in Cataluña there is only a fourth part and only in favor of the descendants. There are also rules in the Balearic Islands, Basque Country and Aragon.

What happens if I do not make a will?

Remember that a will is only an act that gives you the freedom to choose how you want to distribute your assets. In case there is no will, or if the will is considered null and void or in some other case (for example, if the heirs die before you as testator or not all the forced heirs have been included), the law establishes who are the heirs of the deceased.

  • In the first placeThe children and descendants (grandchildren only if they are deceased or are unable or unwilling to inherit their parents) with respect to their parents and ascendants and without any discrimination based on sex, age or parentage.
  • In second placeIn the absence of the aforementioned, the parents and the closest ascendants in degree. If the parents are not living, the grandparents inherit.
  • In third placeThe spouse, who inherits in the absence of descendants and ascendants and before siblings.
  • LastlyThe so-called collaterals, siblings (who inherit in equal shares), nephews, uncles, aunts and uncles. Other relatives up to the fourth degree (cousins) will inherit in the absence of the above. If there is no will, it is not possible to inherit beyond the fourth degree of kinship.

In the absence of all of the above, the State inherits, although in some Autonomous Communities it is precisely the respective Autonomous Community. This order is different in some Autonomous Communities such as the Basque Country and Navarra. If you have no relatives or loved ones with whom to share your inheritance in the future, you can name one or more non-profit entities as universal heirs, and allocate all your assets to continue building a better world.

In order to prove the condition of heir, it is necessary to prove the death and to carry out a procedure of declaration of intestate heirs, which can be judicial or notarial and whose costs are, in any case, higher than that of a will.

Legacy
As testator in your will, in addition to naming an heir, that is, designating the person or persons who will receive the generality of the assets and rights, you can also leave specific assets or rights to a person, natural or legal.

These assets can be an asset (real estate, a car, a work of art, jewelry, etc.) or a right (a benefit, the collection of a debt, a percentage of an estate, etc.). You can also bequeath assets that are not in your estate as testator. In this case, the heirs must purchase the asset for the legatee (the person receiving the bequest) from the estate (e.g., "from bank account X, buy a car for x person").

The specificity of legacies is that they have a limit: they can in no case prejudice the legitimate rights of the forced heirs. In addition, they must be granted by will and must be expressly indicated.

If you decide to include any non-profit organization in your will, it is important that you share your decision with someone from their team, not only to verify their identification data, but also to ensure compliance with your will. In addition, you will be able to learn more directly about their work.
Foral legislation on wills

When making a will, the most advisable option is to make a will before a notary, since he/she will be obliged to draft it according to your will as testator, which he/she will have to investigate, interpret and adapt to the legal system. You can also go to a lawyer beforehand, so that he/she can advise you on more specific matters, but this advice does not exclude the work that the notary will develop in any case. In particular, it is advisable the modality of open will, due to the complexities of the inheritance phenomenon, such as the peculiarities of the foral legislations of the Autonomous Communities.

In Spain there is a common civil law, which is mainly set out in the Civil Code. However, certain civil matters are regulated by some Autonomous Communities that have civil legislative competence, the common law becomes of subsidiary application, giving preference to the existing regulation in such Autonomous Communities (foral or special civil law).

This special foral or civil law is sometimes applicable by reason of the person's civil residence (1) and sometimes by reason of the mere fact of making a will in the territory where the foral law applies. Therefore, a personal or territorial law. In relation to the Autonomous Communities, several questions arise:

  • Language: Article 684 of the Civil Code establishes that the will must be drafted in at least one official language of the place where it is granted.
  • The joint will: There are Autonomous Communities in which it is not accepted (articles 669 and 773 of the Civil Code), as in the Balearic Islands and Catalonia. In other Autonomous Communities, joint wills are accepted, so the prohibition of the Civil Code does not apply. These are Aragon, the Basque Country, Galicia and Navarre.
  • Fiduciawhich is the figure by which the testator is allowed to name a person who will be responsible for distributing his or her inheritance when the testator dies. In the event that there is one or more non-profit entities with which you would like to continue to collaborate when you are no longer alive, you should inform this person of your desire to include him or her in your estate.

Civilian neighborhood: It is the link between the person and a legal system of an Autonomous Community in civil matters. If a person acquires a civilian citizenship
(e.g., in Aragon), the legislation of the Autonomous Community of
that neighborhood. Acquires by birth, filiation or residence (normally 10 years).
of residence in a Community, although an express declaration is sufficient 2).

Joint will: It is the one that is granted by two or more people. In some places it refers only to spouses, but in others it can be spouses or not, and it can even be more than 2 persons. They do not have to name each other as heirs, but nevertheless, in practice it is the most common.

Fiducia: It is the act of naming in the will one or several persons to order their succession. Solidarity Legacy Phone: 902 010 609

Aragon
The basic regulation in the foral legislation of Aragon in this matter is Law 1/1999, of February 24, 1999, on inheritance by cause of death.

In notarial wills granted in Aragon, the intervention of witnesses will not be necessary, except in exceptional circumstances. This rule is territorial, not personal, which implies that it is applicable not only for the Aragonese who testes in Aragon, but for any person who grants a notarial will in Aragonese territory.

The specialty of this provision is not because it is the only Community to establish it (in fact, the Civil Code regulates it in the same way), but because it was the first foral legislation to do so, anticipating the rest of the Autonomous Communities.

It should be noted that in Aragon there is also the possibility of granting a joint will (1), that is, a will granted by two or more persons in a single act and in a single instrument. The rules governing joint wills are of a personal nature, i.e., they "accompany" the Aragonese wherever he/she grants a will, unlike what we have just mentioned regarding witnesses.

As a curiosity, it should be noted that if one of the grantors is not Aragonese, he/she can do so as long as his/her legislation does not prohibit it. Thus, a joint will granted by an Aragonese with someone subject to the rules of the Civil Code, Catalan or Balearic law would be null and void.

Joint will: It is granted by two or more persons. In some places it refers only to spouses, but in others it can be spouses or not, and it can even be more than two people. They do not have to name each other as heirs, but nevertheless, in practice it is the most common.
Balearic Islands

The legislation in force in the islands consists of Legislative Decree 79/1990, of September 6, which approves the revised text of the Civil Law Compilation of the Balearic Islands.

Two issues can be highlighted from its inheritance regulations:

  • The presence of witnesses in wills executed before a notary. The 1990 Decree provides that the intervention of witnesses is not necessary, but establishes exceptions: "When the notary does not know the testator".
  • The figure of the codicil(1), similar to that of the Code of Succession of Catalonia.

In matters of institution of heirs, a criterion similar to that of the Catalan Code is also followed, expressly declaring that the institution of heirs is an essential requirement for the validity of the will. However, the Balearic regulation distinguishes between its territories. Thus, the requirement of the institution of heirs applies to Mallorca and Menorca, but not to Ibiza and Formentera, where it is stated that the will and the succession pact(2) will be valid even if they do not contain the institution of heirs or the latter does not include the totality of the assets (art. 69.2 of Legislative Decree 79/1990).

(1) Codicil: This institution is preserved in Catalonia, Balearic Islands and Navarre. To define it, we can say that it is a brief last will disposition without institution of heir, to reform or partially add to the wills. In other words, it is like an annex to the will that completes it.

(2) Succession covenant: Like all agreements, it is a contract or agreement of wills between two or more persons, and being a succession agreement, it refers to the one that articulates any dispositions mortis causa on one or some of the contracting parties. Its content can be varied, one contracting party can renounce to the inheritance of the other contracting party, some disposition can be made in favor of a third party, etc.

Catalonia
The regulatory norm is the Inheritance Code of Catalonia of 30/12/1991.

The two main ideas that emerge from this regulation are: the unity of the succession title and the essential character of the institution of the heir (hereu, in Catalan). This implies that the succession by cause of death is conferred by virtue of a single title: the heir is the one called to succeed in everything to the deceased, and closes the possibility that voluntary and legal heirs concur in the same succession.

The institution of an heir is an essential condition of the will. Otherwise, it would be null and void, "except for the one granted by a person subject to the Tortosa Law" (articles 125, 136 of the Catalan Code).

Galicia
The matter is regulated by Law 2/2006, of June 14, 2006, on Galician Civil Law (Title X. On Succession by Cause of Death, Articles 181 and following).

As special characteristics, we can point out that the general rule of the rest of the legal systems of not requiring witnesses when granting the will before a notary is followed. This Autonomous Community also follows the Aragonese regime of the joint will (1), expressly establishing the personal nature of this rule, by stating "in Galicia or outside it" in its Article 188, but nevertheless, it differs in that there is an advantage when the joint will is granted by two spouses, when it explicitly states that they may make joint dispositions (each one of them making his or her own). This possibility of making correspective dispositions is only reserved to married couples.

On the other hand, Article 243 reduces the legitimate portion to a quarter of the inheritance, unlike the general rules for the rest of Spain.

Joint will: It is granted by two or more persons. In some places it refers only to spouses, but in others it can be spouses or not, and it can even be more than two people. They do not have to name each other as heirs, but nevertheless, in practice it is the most common.
Navarra
It is extensively regulated in Laws 184 to 205 of the Compilation of Navarre.

When speaking of Navarre's legislation, we must refer to Law 187 on "Pious Mandates" (1), since it states: "In open wills, granted before a notary, baroque or other clergyman ordained as a priest, the warning made to the testator on whether or not he wishes to order pious or charitable mandates must be recorded".

The relevance of this precept is due to the fact that today the concept of "pious mandates" can be understood in a broad sense, including all types of dispositions with a pious or charitable purpose.

Since this type of clause remains as a reminiscence, as a legal or juridical fact, this warning is obligatory. Otherwise, a will that does not include any reference to pious mandates would be null and void. You can include the non-profit organization(s) you choose to collaborate with when you are no longer with us.This type of donation is a fundamental support for your efforts and those of the NGOs to achieve a more just world.

On the other hand, in Navarre, as in other Autonomous Communities, there is the possibility of granting a joint (2) or "brotherhood" will, and it follows the Aragonese model, by allowing two or more persons without any conjugal or kinship ties between them. Navarre also regulates the "codicil" (3) as a way of adding to, completing or modifying a will, without revoking it.

In Navarre, it is not necessary for the will to contain the institution of an heir in order for it to be valid, unlike in other jurisdictions. In fact, the testator can distribute his entire inheritance in legacies.

In this sense, Law 219 contains a special provision for the proportional share bequest. In Navarre, the heir may choose to deliver to the legatee of proportional part in money or in goods.

(1) Pious errands: These are testamentary dispositions by which a person orders or directs the distribution of certain goods or money in favor of pious institutions or organizations.

(2) Joint will: It is granted by two or more persons. In some places it refers only to spouses, but in others it can be spouses or not, and it can even be more than two people. They do not have to name each other as heirs, but nevertheless, in practice it is the most common.

(3) Codicil: This institution is preserved in Catalonia, Balearic Islands and Navarre. To define it, we can say that it is a brief last will disposition without institution of heir, to partially reform or add to wills.
In other words, it is like an annex to the will that completes it.
Basque Country
Inheritance matters are regulated by Law 3/1992, of July 1, 1992, of Foral Civil Law of the Basque Country.

The hil-buruko will stands out for its tradition, which does not vary too much from what is known in common law as the will in danger of death.

It consists of the possibility of granting a valid will before three witnesses, in written or oral form, when the testator is in imminent danger of death. This will becomes ineffective if the person does not die within the following two months, since it is understood that he/she will be able to grant a new will with "more peace of mind". If he/she dies within this period, there will be a new period of 3 months to advertise the will in the forms provided for in the procedural laws.