Our law firm recommends always making a Testament, because it is the best way to guarantee that all the rights of the heirs who can be part of the inheritance are recognized. In addition, making a Testament allows to distribute the inheritance in the best way, to make legacies, and even disinherited some of the obligatory heirs for legal reasons, and to appoint administrators in the case of minors, as well as formalize the best distribution of the assets of the testator.
However, in the event that there is no will, an intestate succession would have to be opened, which will be the will of the law, and not that of the deceased, who will distribute the assets of the deceased.
So it is always advisable to make a will.
In Spain, for a Testament to be valid, it must be done in front of a notary. That being said, there are special situations where a will can be allowed to go by a notary. We are talking about wills like the military, the maritime, or the holograph.
What is a holographic will?
It is a will that is written by hand by a person, that is:Wwritten directly by him, and without the help of anyone.
The requirements for a holographic will to be accepted are set out in article 688 of the Spanish civil code.
This article establishes that for a will to be invalid it is necessary:
1.- It can only be granted by persons of legal age. In other words, holographic wills made by minors are not valid.
2.- In order for this Testament to be valid, all of it must be written by the testator, and signed by himself, expressing the year, month and day on which it is granted. That is to say, Testaments in which have been made by typewriter, printer, computer, etc. are not valid. It must be a document that has been written directly, and literally, by hand by the testator.
3.- If it contains crossed out, amended or interlaced words, the testator will save them under his signature.
Therefore, if the Testament meets the conditions listed above, it could be admissible under the Spanish succession system.
What happens in those cases in which the testator leaves only one Testament, which is the holographic one?
In these cases, after the testator’s death, in the event that he had opted for a holographic Testament, it would be necessary to formalize said Testament by a notary.
At this point, the notary will check if the requirements of the civil code are met, and will check if it has been written by the testator, in his own handwriting, and that it meets the rest of the requirements.
The notary who must be in charge of protocolizing the Testament must be the notary of the place where the testator had his last residence, or most of his assets. In that case, if the notary gives the go-ahead, said Testament will be raised to a public document , by means of an official Testament that the notary himself will formalize.
The civil code establishes a maximum term in which the holographic Testament must be presented once the testator has died, which is 10 days after the testator’s death. If it is not presented in this period, it can be presented later, but eventuak liability for damages may be incurred for those who, knowing the existence of the Testament, did not present it at the due time. The holographic will can be presented by anyone who has an interest in the Testament, such as legal heirs, executors, relatives, etc.
If, after 10 days from death, the Testament has not been presented, any interested party may request the notary to request the person holding the holographic one to present it to him. If that person is not a family member, he must prove that he has legitimate interest in that Testament.
In no case holographic Testament can be presented in more than five years after the date of the decease.
How is the protocolization form of the Holographic Testament?
The form to protocolize the holographic Testament passes through an audience of all the relatives, interested parties, legal heirs, etc., in front of the notary, which will also require the presence of witnesses, who can verify and prove that the write and signature of the deceased is the one that appears in the document.
In the event that the notary confirms with full evidence that said Testament has been made by the testator, he will consider the Testament as valid, and will proceed with the rest of the inheritance process.
The protocolization process of the holographic Testament can be contested by any of the heirs, or any of the interested parties in court, through the appropriate testamentary judgment.
