A will is the act by which a person (testator) disposes, after his death, of all or part of his assets. This act is personal, solemn, free and revocable, indicating that the will can be modified as many times as desired.
And if there is no will, what happens? The default would be what the law indicates, and it could happen that the destination of the assets is not what the deceased really wanted.
Types of wills
Holographic will document: this is a will written by hand and signed by the testator without a notary. It is more private and simple but not without risk: it can be lost, destroyed or not comply with any of the requirements of the regulations. It is necessary for the will to include the date. Therefore, it is advisable that it is combined with a notarial deed reflecting its execution and deposit with a notary and that it is recorded in the register of last will and testamentary acts.
Notarial open will: this is the most common and is made before a notary, who is the one who draws it up. It is obviously not secret, but it is the one that provides the greatest legal security and is the most advisable in most cases.
Open wills without notarial intervention: these are the will in danger of death and the will in the event of an epidemic. Their application is based on the urgency of both wills.
Closed will: This is drawn up privately and then handed over to the notary in a sealed envelope. It is rarely used in practice.
Special wills: These are granted in special situations. These are: military wills (in times of war), maritime wills (during a sea voyage) and wills granted in a foreign country.
Why you need a lawyer for this?
At Posada Lawyers we will help you in the process of succession planning, advising you in this process based on the tax and legal regulations of the area.
Inheritances
In Spain we can speak of three types of inheritance: testamentary, intestate and mixed.
Wills
The deceased has left a last will and testament. Even though the testator has expressed his or her wishes in the will, these must comply with the limits established in the regulations (in Andalusia under the civil code) regarding the legitimate portion of the estate.
Intestate
This occurs when the testator has not left a valid will or does not cover all of his or her assets. In these cases, it is the law that establishes the order of succession. In many cases, spouses, especially if they are in separate property and there are ascendants or descendants, can find themselves in complicated situations.
Mixed: a mixture of the two above.
Parts of the inheritance
In the event that we have a valid will, inheritances in Spain consist of 3 parts (depending on the Autonomous Community the distribution percentages will be different): legitimate, improvement and free disposal.
Legitimate: this is the portion of property that the testator cannot dispose of because the law has reserved it for certain heirs, therefore called forced heirs. It is distributed equally among the forced heirs. They are forced heirs:
- Children and descendants in relation to their parents and ascendants.
- In the absence of the foregoing, parents and ascendants in respect of their children and descendants shall
- The widow or widower in the manner and to the extent provided for in this Code.
Improvement: It is distributed among the descendants and the testator can decide which of these descendants is to be ‘improved’.
Free disposition: This is the part of the inheritance that the testator can leave to whomever he/she chooses. Without limitation.
Do I need a lawyer?
At Posada Lawyers we will accompany you throughout the inheritance process, mediating between the heirs (if necessary) to avoid legal proceedings and speed up the procedures. We will help you to compile and organise the necessary legal documents, to carry out the administrative and legal formalities related to the inheritance and the payment of taxes.
Inheritance is a transfer of rights but also of obligations (including tax obligations), which is why it is highly advisable to have a lawyer who is an expert in legal and tax aspects.
