What is a will?
A will is a unilateral and strictly personal legal act, which is essentially revocable, by which a person regulates the succession of their estate after death, primarily by designating one or more heirs.
Why is it considered a legal act?
It is a legal act because it produces legally binding effects.
Why is it unilateral?
It is unilateral because it is executed by a single individual and depends solely on the wishes of the testator. Under Spanish law, it is not possible to make a joint will with another person, for example, with your spouse, since, as noted, a will is an entirely personal and individual act.
It is a declaration of intent that requires no specific recipient, which distinguishes it from a succession agreement. It does not require the consent or agreement of any other party in order to be fully valid and effective.
It is a strictly personal act, meaning the testator must express their wishes in person and may not do so through a representative.
It is an essentially revocable act, as it may be amended at any time. Only the most recently executed valid will shall apply, since each valid will automatically revokes the one preceding it.
WHO HAS THE LEGAL CAPACITY TO MAKE A WILL
In general, any person of sound mind who is at least 14 years of age may make a will.
TYPES OF WILL: THERE ARE THREE TYPES OF WILL
OPEN Will
This is the will executed before a notary, designating the beneficiaries and setting out how the estate is to be distributed. It is advisable to seek legal advice beforehand in order to assess the most appropriate way to allocate assets.
In any will, the testator is free to leave their assets to whomever they wish and in whatever manner they choose, subject only to the statutory limits imposed by forced heirship rules.
In the case of an open will, the notary will assess whether the person making the will has sufficient mental capacity to do so, forming a judgment through general questioning of various kinds in order to gauge their mental state.
This is the most common form of will.
It is not strictly necessary for the testator to attend the notary accompanied by two witnesses for the open will to be fully valid; however, doing so is advisable where the testator's mental capacity may later be called into question.
This type of will offers the greatest security in terms of establishing its existence and content, as the authorising notary will register it with the Register of Last Wills and Testaments and will retain the original protocol along with its contents.
HOLOGRAPHIC Will
This is a will written entirely by hand, dated and signed on every page, and typically kept in a drawer or other private location.
For this type of will to be valid, the person signing it must be of legal age.
As it is not executed before a notary, it carries the risk that no one may be aware of its existence, since, unlike an open will, it will not have been registered in any official registry.
Once the testator has passed away, the formalities required to open succession under a holographic will become considerably more complex, as its authenticity and validity must be proven, which entails additional costs and delays.
CLOSED Will
This is a will drawn up in writing, which need not be handwritten, and deposited in a sealed envelope before a notary. Like an open will, it is a notarial will and carries all the guarantees that this entails; however, unlike an open notarial will, the notary is not privy to its contents, indeed, the notary has no knowledge of them whatsoever, as the document is handed over in a sealed envelope with a declaration that it contains the testator's will.
The notary must draw up a record confirming that the testator has executed a closed will.
Opening it will require the presence of two witnesses, once the person has passed away.
Finally, it is also possible to make a will under special circumstances, giving rise to what are known as military wills, maritime wills, and wills made abroad.
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