As a general rule, the testator must be, at least 14 years of age, and legally capable to make a valid will.
The Notary may request the presence of 2 witnesses, who can also be required in case the testator is blind or illiterate.
It must be shown that a minor, a person who is blind, deaf, dumb, and the spouse and closer relatives of the testator cannot act as witnesses.
Every will has got a certification number in Spain which is kept on file to the Central Registry of Spanish wills (Registro Central de Última Voluntad) located in Madrid. The certification numbers of all Spanish wills are kept in this place in order to ensure that the estate neither be sold nor transferred illegally.
A legal copy of a will can always be found there. In case you don't know whether the decedent made a Spanish will or not, or if the will is lost, you can request a certificate to the central registry under the deceased person's name. If the will exists, the registry will provide you with the number and the name of the notary who made it in the first place,this will enable you to get a copy of the will from the notary.
The certificate can only be applied within15 days after the testator's death.
To revoke a will the testator must have the same mental capacity as it is required in making one.
The provisions made in a will can be revoked even when the testator had previously declared his intention of not revoking these.
A will may be revoked by the execution of a new will, which may amend, replace or make ineffective all prior wills. It can also be revoked when the testator declares before a notary his intention to cancel or keep any of the provisions of the will. The alterations shall be made under the same conditions as in making the previous will.
If there is more than one will, only the last one made is legally valid. You can be informed about the number of wills the decedent made by requesting for a certificate to the Central Registry of Spanish Wills.
A will is null and void in any of the following cases:
Who shall inherit the decedent's property in Spain and in what proportions?:
a) If the decedent died leaving a valid will, the persons who shall inherit his property will be the following:
Compulsory heirs: The Spanish laws of sucession determine obligatory heirs, who shall inherit at least, one third of the decedent's assets, this portion is called "la legítima". The obligatory heirs of the deceased are:
The surviving spouse shall receive the usufruct over one third of the estate, in case the testator died leaving issue. Over half of the estate, when the decedent died without issue while his ascendants were still alive, or over two thirds of the estate, if the decedent died without ascendants nor descendants.
The voluntary heirs: The testator may leave part of his assets to the persons of his choice. Beneficiaries may inherit those assets exceeding the third of the estate named as "la legítima". The surviving spouse shall receive the usufruct over third of the assets, , or over half of the estate, when the decedent died without issue while his ascendants were still alive.
If there are no compulsory heirs, voluntary heirs may inherit all the decedent's assets.
Along with the compulsory and voluntary heirs, the legatees will inherit specific assets that the testator may have disposed for them.
b) If the decedent died intestate:
If the decedent dies leaving no will, the Spanish law of sucession determines who shall inherit. The decedent is considered to have died intestate in the following cases:
The Spanish laws of succession set out the following hierarchy of inheritors in case of intestacy:
If the deceased was married under community property marital regime, which is the general regime for matrimonial property in Spain half of the decedent's property do not form part of the estate, but continues to belong to the surviving spouse.
The other half of the estate less the charges must be divided intro three equal parts. The surviving issue will inherit at least one third of the assets, which is called "la legítima", another third of the assets must also be left to to the children, but the testator may decide how this is to be divided. The surviving spouse shall receive the usufruct of this third of the assets, and the inheritors cannot dispose of it freely until the surviving parent dies. The testator may leave the last third of his assets to anyone he pleases.
When the decedent died without issue and descendants, the surviving ascendants shall inherit one third of the estate, if there is a surviving spouse, and half of the estate, if he has no surviving spouse. When there are neither children nor ascendants, the surviving spouse shall inherit the usufruct of two thirds of the estate.
This is the act of a person that has the efect of depriving an obligatory heir of the property that would have been distributed to that person under the Spanish laws of succession. Disinheritance can only be made by leaving a valid will.
If the disinherited legitimary challenges and disputes the disinheritance alleging the non-existence of the reason, the evidence that such cause did exist corresponds to the rest of the heirs.
The child and descendants of the disinherited person shall keep their rights as obligatory heirs
The reconciliation of the testator with the legitimary who has incurred in cause of disinheritance, leave the disinheritance without effect.
Acceptance is a declaration of the heir's intention to inherit all rights and obligations that belonged to the decedent. He may accept through a public or a private document, it may also be accepted tacitly, by taking the assets he was left.
The heir may accept the inheritance in profit of inventory "a beneficio de inventario", which means that the heir will only pay the decedent's obligations up to the limit of the assets contained in the will, otherwise they shall pay the total amount of the debt even with their personal property. It is advisable that the heirs accept in profit of inventory when it is uncertain the deceased's ability to pay the debts he contracted. The acceptance in profit of inventory can be made before a notary, a judge or before a consular agent, in case the heir is not in his country of origin.
The heir may renounce the inheritance by declaring it on a public deed before a notary or a judge. If the summoned individual repudiate an inheritance in prejudice of his creditors, these will be entitled to request from the judge that he authorises such creditors to accept the inheritance in the name and in lieu of the repudiating party, for the sole purposes of recovering their credits on the hereditary estate. The creditors then shall recover their credits on the hereditary estate. The remaining assets corresponding to the debtor heir, who renounced to the inheritance shall be shared among the rest of the inheritors.
Acceptance or repudiation of the inheritance shall be declared within 30 days after the death of the decedent.