We are sure you have read a lot on the internet about wills, such as whether or not they are compulsory, how to do it and above all that they probably cost a lot of money and that it is better to leave it for later because it is very complicated.
In this small article we want to bring the will closer to our clients, as a recommendable and very accessible document, to leave all your affairs in order and according to your “last will”.
We would like to start by talking about what a will is.
The will is nothing more than a document that collects the declarations of a person, called testator, to establish his/her last will, or, in other words, how and to whom he/she wants to leave the assets he/she has. However, the will can include much more than a statement on the designation of assets, as it can mention designations of possible legal guardians for minors, legacies, the inclusion of executors, etc.
Although it seems very simple, it is always advisable to prepare and draft this document with the assistance of a lawyer, an expert in the field, as it can can be used as a guide, not only on the specific provisions and wishes to be included in the will, but also on the consequences of the same and how to avoid, for example, a possible challenge to the will.
In this article we are going to focus on the open notarial will, that is to say, the will that is signed before a notary, although it should be noted that in Spain we have other types of wills.
Well, in order to be able to sign a will, in Spain, the following must be taken into account or comply with the following premises:
– Be of legal age
– You must not be incapacitated and be of sound mind.
– You must have a valid ID card/passport
– It is a personal act
– It is not compulsory
The first three points seem quite clear, as in order to sign a will you must be of legal age, have sufficient capacity to understand what you are signing and have a valid identity document, whether Spanish or foreign, as it must be checked by the signing notary.
We mention the other two points because they are recurring questions in the office for many clients, and that is that the will must be signed in person, that is, you cannot delegate this function to anyone or use an authorisation or a general or special power of attorney to sign it, but it must be signed, in person, by the testator.
On the other hand, signing a will in Spain is not compulsory, although it is highly recommended, as in the case of not having a will, the rules established for intestate succession would apply and it would not be up to us to decide to whom our assets go, but rather the different applicable laws, depending on whether or not we are residents in Spain, the nationality we hold, our marital status, etc.
There are many advantages to signing a will, but we would like to highlight the following:
– Free disposal of our assets.
– Confidentiality and accessibility, as the will is registered in the Register of Last Wills.
– Avoiding an intestate succession, perhaps less favourable.
– Avoidance of challenges to the will.
– Affordable cost
– Having legal advice, not only for the drafting of the will but also for the legal and financial consequences, in terms of inheritance tax.
On the other hand, and in order to avoid problems in the future, we recommend that you speak to your lawyer, who will be able to explain everything related to wills, succession, as well as resolve any questions you may have, always seeking the best solution taking into account your specific case.