The Definitive Guide to the Different Types of Wills Valid in Spain
Did you know that in Spain there are several types of wills, each suited to different situations and needs?
A few days ago, we made a post on our Instagram profile with a photo classifying the different types of wills we can find, identifying up to a total of 7 different modalities.
In recent days, we have received numerous messages regarding the different modalities of wills, some of which were completely unknown, which is why we have decided to make a post developing the publication made on Instagram.
In our previous post, we answered five different questions, including the advantages of having a will, which we also summarized in a post on our Instagram profile. Once it is clear that you want to make a will, it is time to get to work, decide which will we want to make, which will depend on certain circumstances, and, above all, be careful in its drafting, which should be completely clear and understandable, since, to begin with, the interpretation that will predominate in the will will be according to the literal meaning of its words (art. 675 Civil Code).
As a starting point, we will establish, as the Civil Code itself does, the differentiation between the common will and the special will. As a common will, we have the holographic will, the open will, and the sealed will; on the other hand, the special will, will be the military will, the maritime will, and the one made in a foreign country (arts 676 and 677 Civil Code).
The Holographic Will: Handwritten
The holographic will is regulated in articles 688 to 693 of the Civil Code and is characterized by having been written by an adult, having to be written entirely by the testator and signed on each and every page, stating the year, month, and day it is granted.
For this type of will to be valid, it must be formalized, for which it will be presented to a notary within the five years following the death of the testator. Likewise, in case it is presented after the days following the knowledge of the death of the testator, the holder will be responsible for the damages that may be caused.
It will be in accordance with notarial legislation that this will is verified and formalized once its validity has been verified, otherwise, it will proceed to its filing.
The Open Will: Celebrated Before a Notary
The open will is regulated in articles 694 to 705 of the Civil Code and is characterized by being that will granted before a notary, who will be in charge of drafting it according to what the testator expresses orally, in writing, or by any other technical, material, or human means.
In this testamentary modality, the notary is in charge of almost all the management, as well as the formalization of the last wills and verifying that these are the last wills of the testator, as well as attesting that the testator knows the entirety of the will.
At the same moment of the grant, it will be necessary for two suitable witnesses to appear for when the testator is unable to sign the will or when requested by both the testator and the notary.
In this type of will, if nullity is declared due to non-compliance with legal requirements, the authorizing notary will be responsible for the damages that may occur.
The Sealed Will: The Most Private Option
The sealed will is regulated in articles 706 to 715 of the Civil Code and is characterized by always being written. This writing may be handwritten, in which case it will be valid if it is signed at the end or by any other means, having to sign all the pages.
For the validity of this will, it is required that it be within a cover, closed and sealed in such a way that the will cannot be extracted without breaking it. The said document must be taken before a notary who must extend the act of its granting, two suitable witnesses must attend if requested by the testator or the notary.
The person who remains in custody of the sealed will must present it before a Notary within ten days after becoming aware of the death of the testator.
The Military Will: For Times of War
Collected in articles 716 to 721 of the Civil Code, it will be valid for times of war in which a will can be made before an officer who has the rank, at least of captain, who will be in charge of sending it as soon as possible to the General Headquarters.
This will has a validity of up to four months after the testator has been on campaign. It is also allowed to be granted verbally before two witnesses.
The Maritime Will: For Stays at Sea
Collected in articles 722 to 731 of the Civil Code and is characterized by being granted during a sea voyage and by the people on board, being able to be
made before an accountant on warships, before the captain on merchant ships, requiring the intervention of two suitable witnesses.
This type of will has as a requirement the duty of custody of the will during the sea voyage with obligations for when arriving at port.
The Will in Times of Pandemic or in Danger of Death
Although it is not a type of special modality, despite its regulation included within the open will, I understand that it should be considered as a special modality, because it allows its granting before five witnesses (in case of imminent danger of death) or before three witnesses over sixteen years old (in case of a pandemic) and has a limited validity, that is, it has a duration of up to two months from the time the testator has left the danger of death and, in case of death, if within three months after the death, it is not taken to the Notary to be raised to public deed.
The Foreign Will
As its name indicates, it is the one that was granted outside the national territory, granted according to the norms of the said country or before the diplomatic or consular official of Spain who exercises notarial functions. This type of will is regulated in articles 732 to 736 of the CC and sets a series of conditions for its full validity.
These are the modalities of wills valid in Spain and that we can formalize, some of them being subject to compliance with a series of requirements, so that, otherwise, we would be facing a nullity of the will.
If you wish to know more, do not hesitate to contact us or book your visit.