Why make a will
In Spain, if you die without a will (intestate), the law decides who inherits and in what proportion. First children, then the spouse, then parents, and so on according to the order in article 912 of the Civil Code. If there are no relatives up to the fourth degree, the State inherits.
With a will, you decide. You can favour one child, leave a bequest to a friend, appoint a trusted executor or include specific conditions (for example, that a property may not be sold until the minor turns 25). Without a will, none of that is possible.
Making a will does not mean you are about to die. It means that, when it happens, your family will not have to guess your wishes or fight over them. The process takes about 20 minutes and costs less than a dinner out.
Types of will
The Spanish Civil Code regulates several types. The three main ones are:
Open notarial will. The most commonly used. The testator dictates or expresses their wishes to the notary, who drafts the document and reads it aloud. The testator approves and signs it. The notary keeps the original in their protocol and reports its existence to the General Registry of Last Wills. This is the type we recommend for its legal certainty.
Closed will. The testator writes their wishes (or has them written) and places them in a sealed envelope delivered to the notary. The notary records the delivery but does not know the contents. It is uncommon because of practical problems: if the envelope is lost or damaged, the will is lost. Regulated in articles 706 to 715 CC.
Holographic will. Written entirely by hand by the testator, with their signature and date. No notary is involved. Only valid for adults. After the testator's death, it must be protocolised before a notary within 5 years of death (article 689 CC). It is risky: if it is not found, if the handwriting is illegible or if there are doubts about authorship, it can be challenged.
There are also special wills: military (in the field), maritime (on board a vessel) and in imminent danger of death (before five witnesses, without a notary). These expire if the testator survives the situation that prompted them.
The forced share: what you cannot take away
Under common Spanish law, the testator cannot freely dispose of their entire estate. The legítima reserves a portion for certain forced heirs:
- Children and descendants: two thirds of the estate. Of those two thirds, one is the strict legítima (divided equally among all children) and the other is the improvement third (you can distribute it as you wish among children and descendants, favouring one over another).
- Surviving spouse: usufruct of one third (the improvement third) if there are children. If there are parents of the deceased, usufruct of half. If there are no descendants or ascendants, usufruct of two thirds.
- Parents and ascendants: one third if there are no descendants (half if there is no spouse).
The remaining third is the free disposal third. You can do whatever you like with it: leave it to a friend, a charity, your pet through a designated carer, or anyone you choose.
Differences by autonomous community
The Civil Code's forced share only applies in territories under common civil law. Several autonomous communities have their own rules:
Catalonia. The children's forced share is only one quarter of the estate (25%), not two thirds. The testator has much more freedom to distribute their wealth. Law 10/2008 of 10 July, Book Four of the Civil Code of Catalonia.
Basque Country. The forced share is one third for children, but it is collective: the testator can distribute it freely among them, even giving it all to one. Law 7/2015 of 30 June on family relations.
Aragon. Collective forced share of half the estate for descendants. The testator can distribute it as they wish among children and descendants.
Navarre. There is no material forced share. Children have the right to be mentioned in the will (formal legítima), but the testator can leave them nothing. It is enough to name them.
Galicia. Forced share of one quarter for children (similar to Catalonia). Law 2/2006 of 14 June on Galician civil law.
Balearic Islands. In Mallorca and Menorca, the forced share is similar to common law but with variations in collatable gifts. In Ibiza and Formentera, the forced share is one third or half depending on the number of children.
Making a will by video conference
Since Law 6/2020 of 11 November, regulating certain aspects of electronic trust services, it has been possible to execute public deeds by notarial video conference. That includes the open will.
The process is the same as in person: the notary verifies your identity, asks about your family and financial situation, drafts the will according to your instructions, reads it to you and you approve and sign it electronically. The difference is that you are at home and the notary is in their office.
The notary must verify that the connection is secure, that there is no coercion (you are alone in the room) and that you understand what you are signing. If the notary has doubts about any of these points, they may refuse to authorise the act.
How much it costs to make a will
The notary fee for a will is regulated by Royal Decree 1426/1989. For a standard will, the fee is €40 to €60 depending on length. There is a minimum of €30.05 plus a surcharge per additional folio.
With VAT (21%) and copies, the total cost of a simple will is around €50-80.
At Notaría Online, the will execution service by video conference costs €125 + VAT. That price includes the prior consultation, will drafting, video conference signing and delivery of an authorised electronic copy. The notary fee is included in the price. See the full pricing.
Revoking a will
You can change your will at any time, as many times as you wish. You simply execute a new one. The later will automatically revokes the earlier one, unless the new will expressly states that the previous one stands where there is no contradiction.
You do not need to destroy the previous will or notify anyone. You simply execute a new one and the notary reports it to the General Registry of Last Wills. When you die, the certificate of last wills will be requested and the most recent will identified.
If your family situation changes (birth of a child, divorce, death of your spouse), review your will. It does not expire, but it can become outdated.
Documentation required
- Valid ID card or passport of the testator.
- Beneficiary details: full name and ID or passport number. If you do not have a beneficiary's ID number, their full name and relationship is enough.
- Description of assets you wish to mention expressly (it is not mandatory to list everything; you can make specific bequests and leave the rest "in equal shares among my children").
- Name of the executor if you wish to appoint one (optional but advisable if the estate is complex).
You do not need property certificates, deeds for your real estate or bank statements. A will is not an inventory; it is a declaration of wishes.