What is a will?
A will is a personal and revocable legal act by which a person decides how all or part of their assets will be distributed after their death. It is the main instrument of succession law and the means through which the wishes of the deceased can be fulfilled after their passing.
Making a will allows a person to organise their succession, appoint heirs and legatees, name an executor or guardian, and prevent family disputes. If there is no will, the inheritance is governed by the rules of intestate succession.
Contents
Legal definition of a will
Article 667 of the Spanish Civil Code defines a will as the act by which a person disposes, for after their death, of all or part of their assets.
One of its main features is that a will is revocable: the testator may modify it or replace it with another one while they are alive. In addition, a later valid will revokes the previous one, unless the testator expressly states their wish to keep it in force.
Essential characteristics
A will has a number of specific characteristics that distinguish it from other legal acts:
- Strictly personal: its preparation, in whole or in part, cannot be left to the discretion of a third party.
- Individual: under common Spanish law, joint wills are not allowed, meaning a will granted by two or more people in the same document, although some regional laws do allow them.
- Unilateral: it produces effects by the sole will of the testator, without the heirs’ prior acceptance being required.
- Revocable: it may be freely modified or revoked while the testator is alive, provided that the required legal formalities are respected.
Types of wills
The Spanish Civil Code distinguishes between common wills and special wills.
Common wills
- Open will: the testator expresses their wishes before a notary, who drafts and authorises the will. It is the most common and secure type of will.
- Closed will: the testator gives the notary a closed document, without revealing its contents, declaring that it contains their last wishes.
- Holographic will: this is a will written entirely by hand by the testator, stating the year, month and day on which it is made, and signed by the testator.
Special wills
Special wills are those provided for exceptional circumstances, such as military wills, maritime wills or wills made in a foreign country.
General requirements
To make a will, the testator must have testamentary capacity. As a general rule, anyone whom the law does not expressly prohibit may make a will.
Minors under the age of fourteen cannot make a will, nor can people who, at the time of making the will, are unable to form or express their wishes, even with the help of means or support. In addition, the formalities required for each type of will must be respected, as failure to comply with them may result in nullity.
In the case of a holographic will, the testator must also be of legal age.
Importance of making a will
Making a will allows a person to organise their succession according to their own wishes and prevents the inheritance from being distributed exclusively under the legal rules of intestate succession.
It can also be used to appoint heirs, establish specific legacies, name an executor, provide for the guardianship of minor children and reduce disputes between family members after death.