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Keys to making a will: when, how and why to make a will

One of the biggest doubts we have regarding our succession is whether it is worth making a will . Although there are rules of distribution that are automatically applied in the absence of this document, the truth is that formalizing a will will will allow you to choose, within certain legal limits, what will be the destination of your assets and who you would especially like to benefit.

So that you can make an informed decision, in this article we review the keys to the will that we explain to our clients: take note of what are the advantages of doing it, what steps you must follow and what are the limits to which you will have to adjust.

What is a will and what is it for?

A will is a document that states our wishes about how to distribute our assets and rights upon our death.

The rules of distribution that we stipulate are reflected in it, although, as we shall see, not everything goes: it is necessary to respect the regulations and their limits, and for this it is important to have the advice of a law firm with specialists in inheritance. In this way, you will be able to avoid errors that may invalidate or hinder the execution of your will.

In addition, it is advisable to take into account, when preparing your will, the tax implications of each decision contained in this document.

There are different bonuses and other incentives related to the taxes associated with an inheritance that can vary substantially depending on the autonomous community in which you are located and the tax policy of each moment. A lawyer specialized in Tax Law will know first hand which is the most convenient option to achieve the maximum savings for your descendants.

In general, it is advisable to draw up your own will if you have a clear idea about how and in what way to distribute your assets.The same applies in case you wish to favor any person or institution that is not part of the list of forced heirs included in the law (we will see which ones are listed below).

You may want to protect a particular relative or you may wish to donate an amount to an institution. It may also be clear to you that you would like one of your heirs to receive a particular asset to which he or she feels particularly attached.

There are many possibilities offered by this legal instrument. That is why it is essential to meet with reliable personnel who can help you organize your assets in the best way, adapting to your needs and desires.

Is it mandatory to make a will?

It is not obligatory to make a will. If you decide to avoid this procedure, the rules of distribution contained in the Civil Code will be applied, or the corresponding regional regulations, as there are communities that have their own Civil Code, as is the case of Catalonia. In the case of the Valencian Community, the Spanish Civil Code applies.

It does make sense to do so if you have a clear idea about how to distribute your assets that does not fit into the generic rules. It is common to design a will if you have certain assets and you wish to distribute your assets in a specific way (for example, to give a property to each of your children, or to benefit one of them in particular).

What types of wills exist and which one is the best in your case?

There are two types of wills: the holographic will and the notarial open will.

  • The holographic will is drafted by the testator alone. It must comply with certain formalities to be valid: it must be dated and signed by the interested party are some of them. In practice, this is a very infrequent method, due to the subsequent difficulty in proving its validity and the difficulties in registering its contents in the Registries and so on.
  • The notarial open will is the most frequent and is made before a notary. The will of the testator is recorded in a public deed, and is subject to a legality control by the notary public. In addition to ensuring that it is in accordance with the law, the notary is also responsible for the safekeeping of the will. The original will remain in his possession, and a copy will be delivered to the testator.

Of course, the recommendation is to grant a notarial will, since the holographic will always entails practical problems when it has to be executed. Contrary to what may be thought, the will granted before a notary is simple to organize and does not have a high cost, especially if we take into account the advantages of leaving the distribution of assets made for greater peace of mind.

Can I change my will whenever I want?

Yes, you can change your will as many times as you want. In fact, it is possible that, over time, you may change your mind about the destination of certain assets. It is also possible that tax regulations may change and it may be worthwhile to make a different apportionment to reduce the tax bill as much as possible.

Is an executor necessary?

An executor is the person in charge of enforcing the last will of a deceased person and of guarding his or her assets until they are distributed among the heirs. It is named in the will, and is especially useful if it is considered that conflicts may arise at the time of executing the will, or if the estate is varied or large.

In our firm we have acted as executors on numerous occasions: the main task is to make sure that we understand the purpose and wishes of the grantor of the will and, when the time comes to execute it, to make sure that these are carried out.

It is useful to choose an impartial executor, a third party outside the family, so that he/she will not be affected by possible internal disputes.

We encourage you to consult with us if you are undecided about whether or not to add an executor to your will: you need to feel comfortable with your executor in order to be able to trust him or her with your wishes and the vision you wish to express in your will.

Who are the forced heirs?

In order to be clear about the limits when it comes to distributing your inheritance through a will, it is important to know the concept of forced heirs. These are those heirs who, by law, must receive certain percentages of the estate.

In the case of the Spanish Civil Code, the “legítima” is the portion of assets that you cannot dispose of freely, because the law has reserved it for certain heirs, called forced heirs or legitimated heirs. The remainder of the estate may be freely distributed among the so-called voluntary heirs, who may coincide with the forced heirs if you so decide.

They are forced or legitimate heirs:

  • Children and descendants with respect to their parents and ascendants.
  • In the absence of the above, parents and ascendants with respect to their children and descendants.
  • The widow or widower.

If there are no forced heirs, the deceased may distribute the totality of the inheritance among the voluntary heirs of his choice and in the proportion he wishes.

When making the will, you will have to respect the so-called two-thirds rule, which divides the inheritance into the legitimate third, the improvement third and the free disposition third:

  • The one-third of the reserved portion of the estate is divided equally among the forced heirs.
  • The third of improvement serves to improve the legitimate: you will be able to benefit all the forced heirs equally or to favor one or several of them over the rest.
  • The third of free disposition is of free allocation: you will be able to give this part of your estate to the persons and institutions you wish, always within the legal limits (for example, illegal associations are forbidden).

Finally, the widow’s or widower’s usufruct allows the widow or widower to have a part of the inheritance in usufruct as a protective measure, in different amounts depending on whether there are descendants or ascendants, and must be respected when making a will. Also, keep in mind that if you are married in community of property, half of the assets will still belong to your partner when your succession occurs.

To be considered: donations that are eligible for donation

Donations and inheritance are regulated by the same law, and are intimately connected. It is vital that at the time of making a will we question whether gifts have been made or will be made during our lifetime, and to reflect in the will the nature of these gifts. The donations that have been made may or may not reduce the amount to be distributed in the inheritance, i.e., they may or may not be eligible for collation.

In other words, in the event that the will does not indicate that the donations are not eligible for collation, the donations will be considered to be advances of the inheritance.

We strongly recommend that you weigh the consequences of indicating that the gift is or is not collocable, for the proper distribution of your assets.

Will of a non-resident in Spain with assets in Spain

Regarding the will of non-residents with assets in Spain, if you reside in the European Union (excluding the United Kingdom and Ireland), you will be protected by the European Inheritance Regulation, which facilitates the validity of wills granted in any of the member states.

Thus, in case you reside in another EU country and have assets in Spain (e.g., a house)If you do not expressly state your wish that the succession be governed by the law of your country of nationality, you must apply the law of the country in which you reside (regardless of your nationality), unless you expressly state your wish that the succession be governed by the law of your country of nationality.

It is indispensable, therefore, if you reside in Spain without being Spanish, that you grant a will indicating that you do not wish this law to apply to you. The distinction is very important, since succession rules vary greatly from one country to another, even within the EU.

The will can be made in Spain or in the country of your choice, for all your assets, or you can make a separate will in Spain only for the assets that are here, always respecting the legality of the country of residence so that all the pieces fit together. This second option will facilitate the registration of the will by the heirs without the need for any additional paperwork.

If you have doubts about any aspect related to your inheritance, consult our team of lawyers and economistsWe will help you to define the best solution for your case.