Estate management service

What is a will?

A will is a document through which you describe how you would like your assets to be distributed after you die, at which point the will and its contents become a public document.

Why is it important to make a will?

Making a will is the best way to ensure that your wishes are followed after you die. But a will doesn't only guarantee your wishes regarding the distribution of your assets. You can use a will to nominate legal guardians for children who are minors and, old-fashioned as the terms may sound, to appoint an "executor" or "estate partitioner" to help establish the distribution of the inheritance in the fairest manner.

Who can and can't make a will?

Anyone over 14 years of age can make a will, provided they are not incapacitated to do so.

How do I make a will?

Making a will a public document is an easy and relatively cheap procedure. It is simply a matter of going to a notary's office with your ID card or passport.

Do I need a lawyer to make a will?

No, there is no need to hire a lawyer. However, if your circumstances are quite complex, it is advisable to seek specific advice. In most cases, though, you simply need to go to a notary's office.

What types of wills are there?

There are many types of wills, each with their own characteristics and peculiarities. The most common and advisable course of action is to make what is known as an “open” will, which is a legal document drawn up before a notary in which you, the "testator" (the person creating the will), express your last wishes publicly.

When is it advisable to make a will?

Although this might seem like an arrangement typically recommended for elderly or sick people, it is advisable to make a will when you start accumulating assets or have children.

What can you do with a will?

In addition to leaving precise instructions regarding the distribution of your assets, a will allows you to:

• Recognise children
• Appoint a legal guardian for children who are minors or incapacitated
• Appoint an executor or estate partitioner
• Decide how you want to be buried

Can I make more than one will?

Yes, you can make as many wills as you want, but—crucially—only the last one will be valid.

Can a will be changed? When is it advisable to make a new one?

Sometimes people's personal or family situations change, and in that case it might be advisable to create a new will. For example, this would include situations such as the birth of a new child, changes in marital status (marriage, separation, divorce), death of one of the appointed executors or guardians, of changes in the decision to remove, improve or add new heirs.

What are the benefits of making a will?

There are two benefits. One, making a will gives you peace of mind about leaving things in order“” and therefore avoiding headaches and family conflicts. And two, it saves time, conflicts and money for your heirs.

How can I find out if a person has made a will?

Fifteen days after the person's death, if you are an heir you can go to the General Registry of Last Wills and Testaments of the Justice Ministry and request a certificate to find out whether a notarial will has been drawn up and before which notary. To do this, you will need to present the death certificate, fill in the official form and pay a fee. At the same registry, you can also request a certificate to find out whether the deceased had a life insurance policy.

Where should I keep my will?

Once you have made a will, you should keep it in a safe place. It may also be advisable for your heirs or executors to know where you have put the document so that they can find it quickly upon your death. However, if the will is signed before a notary, the notary office will always have the original document.

What happens when a person dies without a will?

In this case, the process is longer. The inheritance is processed through a notarial certificate of heirs called "ab intestato", which must be requested by anyone who believes they have a right to deceased's assets: children, ascendants, collateral relatives, etc.

Do unmarried couples need a will?

It is a highly recommended in these cases. Since there is no marital bond between unmarried couples, it may be the case that when one of them dies, the other does not have any inheritance rights because they are not considered a legal heir. It is advisable to be aware of this situation and anticipate it in some way, whether by making a will that includes the person or by legally formalising the relationship.

How is an inheritance distributed?

Inheritance distribution refers to dividing the deceased's assets between the heirs. This distribution is regulated by law.

In Spain, for individuals subject to common law, inheritances are divided into thirds:

• Legitimate third, to be distributed in equal parts between the legitimate heirs in the same line. Only certain people have the right to the legitimate third. This includes the widowed spouse, who acquires a usufruct right that varies according to the other people with a legitimate share of the inheritance.
• Improvement third. This refers to the part of the inheritance that can be used to benefit one or more of the deceased's descendants (sons, daughters or grandchildren).
• Free disposal third: This is the part of the estate that the deceased can dispose of however they wish, regardless of whether the beneficiary is a relative or not.

Remember, the distribution of the inheritance must be carried out in accordance with what is established in the will.

Who inherits when there is no will?

Generally speaking, the children (or grandchildren if the children have died) would inherit first. If the deceased has a spouse or common-law partner, they would have a usufruct right to a third of the inheritance. However, the rules vary slightly depending on the autonomous community of the deceased.

Distribution of the inheritance when there are no descendants:

• In the absence of descendants, they deceased's ascendents (parents, grandparents) will inherit. In this case, if there is a widowed spouse they will have a usufruct right to half of the inheritance.
• Secondly, in the absence of both descendants and ascendants, the widowed spouse will have the right to the inheritance, provided they were not legally or de facto separated from the deceased. In common law, the de facto partner does not inherit if the cohabitant died without a will, although in some autonomous communities they do.
• Thirdly, if the deceased had no descendants, ascendants or widowed spouse, the inheritance is distributed between the deceased's siblings in equal shares and, in their absence, between the siblings' children. If the siblings have no children, the other relatives of the deceased will succeed in the estate in a collateral line up to the fourth degree. There are no inheritance rights beyond that degree when there is no will.

What is usufruct?

Usufruct is the right to use or enjoy the deceased's assets and what they produce. In the case of a property, the usufructuary of that property could rent it and would have the right to collect the rent.

What is meant by the commutation or capitalisation of the spousal usufruct?

When an inheritance is distributed, the widowed spouse may opt to exchange their usufruct for a specific asset. However, this can have significant tax implications because the operation may be treated as a transfer between the widowed spouse and the heirs, in which case property transfer tax would have to be paid as well as inheritance tax in the future when the asset returns to the estate upon the death of the widowed spouse.

However, to avoid this problem, when a person writes a will they can get round this inconvenience by including a clause allowing their spouse to exchange the usufruct right for a specific asset.

Is a will that has not been executed before a notary valid?

Yes, these wills are valid. They refer, for example, to holographic wills (written and signed by your own hand) or those made in imminent danger of death (provided the relevant legal formalities are carried out).

How can children who are minors be protected through a will?

The main measures that a parent can take to protect their minor descendants when making a will are the following:

• Appoint a guardian to look after the children until they reach adulthood.
• Optionally, appoint an asset administrator to manage the inheritance or limit access to it totally or partially until the children reach adulthood or a certain age.
• Optionally, appoint an executor with responsibility, among other things, for ensuring that the inheritance is distributed between the heirs in the fairest way.

What if my partner and I want different guardians, executors or administrators for our common children?

Wills are individual, which means that each parent is free to designate different people to carry out the functions they consider appropriate.

If personal and family circumstances change as time goes by, these designated people can be changed by making another will. 

What happens when the guarantor of a loan transaction dies?

A guarantee assures the fulfilment of an obligation that has been legally undertaken. A guarantee agreement contains two figures:

• Borrower: person applying for the loan.
• Guarantor: person who promises the pay the borrower's debt if the borrower defaults on their obligation.

The guarantee only ceases to have effect when the debt is settled, not when the guarantor dies. Consequently, the heirs will become the new guarantors and the creditor will be able to contact them to claim the entire amount owed.

Is it advisable to take out life insurance or mortgage cancellation insurance?

Definitely. Both life insurance and loan repayment insurance provide protection to the family in the event of the death or disability of the insured.

Can I leave all or part of my inheritance to an NGO?

Provided you do not have legitimate heirs, you can leave your entire inheritance to an NGO. However, if you have legitimate heirs, you can only leave the free disposal part. If you want to leave your inheritance or part of it to an NGO, you must state this in your will.

There are several ways to do it: you can name the NGO as a co-heir by establishing a percentage of your inheritance that you want to go to the organisation. If you don't have any legitimate heirs, you can designate the NGO as the universal heir, making it the beneficiary of all your assets. Alternatively, you can establish a specific legacy (a property, jewellery, shares, etc.).

In these cases, it is always a good idea to speak to a legal advisor so they can tell you the best way to express your wishes clearly and concisely.

What happens to my business when I die?

A business forms part of the estate of the person who dies, so it is included in the inheritance like any other asset. These types of assets are treated very favourably from a tax point of view, provided certain requirements are met and the transfer is made to the legal heirs. In view of the importance of the tax implications for the transfer of these types of assets, we recommend analysing the tax regulations to make sure that all the requirements are met since this will make it easier and cheaper to carry out the transfer.

What is a living will?

This is non-notarised document through which a person expresses their wishes regarding their health care and treatment, religious assistance at the time of death, instructions regarding the donation of their body or organs, etc.

The purpose of the document is to ensure that the person's wishes are respected if they become unconscious or unable to communicate. It prevents third parties from making decisions on their behalf.

Anyone over the age of 18 can make a living will, provided they do so freely and leave a record in writing. As with a traditional will, you can change a living will as many times as you want or even cancel it.