How do you make a will?
When making a will, one of the most frequently asked questions by our clients is: What do I need to consider to make a will? How do you make a will? What do I need to think about? For this reason, we have prepared this small guide to making a will, with the most important points to consider when deciding what to include in the final will. We hope it is helpful.
Guide to making a will: most important concepts to keep in mind
The Professio Iuris or the law applicable to succession
With this Latinism of "professio iuris" we refer to the possibility of choosing the law applicable to the future succession. Due to increasing globalisation and internationalisation, the need often arises to determine which law will be applicable to a future succession, as several applicable laws may concur in the same person. This is especially significant following the entry into force of the European Succession Regulation 650/2012, of 4 July 2012.
According to European Regulation 650/2012, in its article 21, "the law applicable to the entirety of the succession shall be that of the State in which the deceased had their habitual residence at the time of death". Meanwhile, article 22 establishes that "any person may designate the law of the State whose nationality they possess at the time of making the choice or at the time of death".
Therefore, it is important, in the event of any international element in the future, such as moving abroad, to determine whether it is preferred to apply the personal law, whether it be the law of nationality or, as in the case of Spain, the law of civil residence.
For example, let us consider a Spanish person with Catalan civil residence who is going to reside in France. In the event of death, French law will apply to their future inheritance, as it is the law of their place of residence. But they can determine in the will that they prefer the personal law to be applicable, that is, Catalan law. In this case, the future succession will be governed according to Catalan law and not French law.
Understanding the compulsory portion and disinheritance
The legítima is the portion of assets that the testator cannot freely dispose of, because the law reserves it for certain people, called forced heirs. In this way, the law protects certain people, taking into account the degree of kinship with the testator, although the legitimate persons, as well as the percentage of legítima, may change if Common Law or regional laws, such as Catalan Law, are applied.
For example, under Common Law, if you have two children, the legítima would be two-thirds of the inheritance, divided between the two children. The rest, the freely disposable third, you can leave to whoever you prefer. In Catalonia, on the other hand, the two children would be legitimate heirs, but they would be entitled to a quarter of the inheritance, divided between the two siblings, with the remaining three quarters being freely disposable.
You can find more information about the legítima in this article:
Now then, on some occasions, the testator can deprive a forced heir of their legitimate share, and this is based on the possibility of "sanctioning" the legatees for bad behaviour or acts they have committed against the testator. It is true that the law reserves a percentage of assets for close relatives, but with mechanisms to protect the testator. This is called disinheritance and can only be done in the will, clearly indicating who is disinherited and the reason for the disinheritance.
For example, a child can be disinherited, for more information, you can consult this other blog article:
The causes of disinheritance are established in the Civil Code, both the common and the regional ones, and will depend on whether we are dealing with descendants, ascendants or the spouse. Without going into detail or analysing it in depth, as it is the subject of another blog article, it should be noted that these general causes of disinheritance are: having denied food without reason; having physically abused or seriously insulted them; having attempted against the life of the testator; having denied food to their own children.
As of today, however, there is another cause, which is the most common in practice, recognised by the Civil Code of Catalonia in its article 451-17: "The manifest and continuous absence of family relationship between the deceased and the heir, if it is for a cause exclusively attributable to the heir." Likewise, in common law, this psychological abuse due to lack of relationship fits, according to the jurisprudence of the Supreme Court. This lack of relationship attributable to the forced heir is a cause for disinheritance, and has become the most used reason when disinheriting.
Distinguish a legatee from an heir
When a will is granted, the testator can distribute their estate in two ways: through the institution of heir and the legacy.
Without going into legal technicalities, the main difference is that inheritance is like giving everything you own, while a legacy is giving specific things. Furthermore, heirs have to decide whether they want to accept everything or reject everything, whereas legatees can accept some legacies and reject others.
Another important difference is that heirs step into the testator’s debts and are responsible for paying them, but legatees do not, unless the testator has stated otherwise in the will or the entire estate is distributed in legacies.
In practice, the most common thing is to appoint heirs of all the testator’s assets to the spouse or children, even friends and close people, leaving legacies to leave specific assets to certain people, especially the universal usufruct of the spouse.
Find out more here:
Substitutions to prevent the inheritance from becoming vacant
Once the heirs and legatees have been appointed, one of the questions our clients often ask is: what if the person I have appointed cannot or does not want to accept the inheritance or legacy? The good thing about making a will is the possibility of answering all these questions and providing an optimal response in accordance with the testator's wishes.
In this case, there is the figure of vulgar substitution. Through vulgar substitution, the testator can determine who he or she wishes to succeed if the first persons appointed cannot or do not want to accept the inheritance or receive the legacy.
The purpose of vulgar substitution is to prevent the inheritance or legacy from becoming vacant, whereas fideicommissary substitution aims to preserve and transmit the assets to a third party.
For example: The testator, Andrés, appoints Blanca and Celestino as heirs, but in case they die before him, he appoints their respective descendants as substitutes. In this case, if Blanca, who has a son named David, dies before Andrés, Celestino and also David, as a vulgar substitute, will inherit. If Blanca had not died, both Blanca and Celestino would inherit from Andrés.
How to make a will to protect your partner, children or pets
Inheritance with spouse or civil partner
This topic is one of the most interesting when it comes to granting a will, which is why we wanted to write another complete article about inheritances between spouses and how to protect the surviving spouse with a will.
If you are interested, you can read the full article here:
Minors, guardianship and administration of assets
When making a will, one of the testator's main concerns is the protection of the children or, failing that, of the descendants, especially when they are minors. This protection not only refers to the allocation of assets but also to personal protection.
In the case of minor children, it is advisable to take advantage of the will to appoint guardians. Guardianship is a legal institution aimed at protecting minors, their personal care, asset management, and legal representation. In other words, they replace the role of the parents when they cannot exercise it for some reason, for example, due to death.
The will is an appropriate document to appoint a guardian. For this, it is necessary to choose the people whom the parents consider most suitable to care for their children in the event that both parents are absent, whether they are grandparents, uncles, or people close to the family. It is advisable to appoint substitutes, that is, to choose a guardian and, failing that, another. It should also be taken into account that the appointment of the guardian corresponds to the judicial authority, who will consider the best interests of the minor but will take into account the parents' wishes expressed in the will, although if deemed appropriate, they may appoint another person.
On the other hand, whether we are talking about children or other minors who may inherit, it is advisable to establish limits on the power to dispose of real estate and assets of extraordinary value. It should be noted that heirs, upon reaching 18 years of age, can freely sell the inherited assets. To prevent heirs from freely selling the assets at 18, it is very common in wills to determine that until a certain age (23, 25, or 27 years are the most common ages), heirs cannot dispose of real estate and assets of extraordinary value without the authorisation of an adult (generally the other parent or the persons appointed as guardians). This way, it is avoided that at 18 they squander the inherited estate and, if necessary, the sale of some asset, for example, to pay for studies, can be done under the control of another person. This provision is very common in practice, especially by parents regarding their minor children.
The care of companion animals after death
The recent Law 17/2021 has represented a significant advance in the legal recognition of animals, by establishing that they are no longer considered things, but sentient beings who deserve special protection. This has brought about relevant changes in the succession field of animals, as it is now possible to refer to companion animals in a will, in order to ensure their care and maintenance after the death of their owner, with it becoming increasingly common to address the inheritance of companion animals in wills.
This topic was already discussed in a previous blog that you can consult here:
Focusing on the relationship between pets and wills, we must start from a first premise. Pets cannot be named as heirs or legatees, as they lack legal personality. What can be determined in a will in favour of pets is:
- Bequeath our pet to a trusted person, naming them as the new owner.
- Designate a person simply to care for and ensure the welfare of the animal, attributing certain goods and rights to the carer for this purpose.
- Assign the status of heir or legatee, or certain goods, to a person on the condition that they care for the testator’s pet.
In the event of the owner’s death without a will or with a will but without a specific clause regarding pets, these will be handed over to the heirs or legatees who claim them, provided there is no unanimous agreement on their fate. If there is no agreement, the judicial authority will decide the fate of the animal taking its welfare into account.
What else should I take into account to make a will?
Designate the beneficiary of life insurance in the will
In the will itself, in accordance with article 84 of the Insurance Contract Law “The designation of the beneficiary may be made in the policy, in a subsequent written declaration communicated to the insurer, or in a will.”
Therefore, in a will it is possible to determine who is to be the beneficiary of some or all life insurance policies. As in previous cases, it is advisable to designate a substitute, in case the first beneficiary is unable to receive the insurance proceeds.
Determine the use of biological material for postmortem fertilisation
Scientific advances in fertilisation also have their reflection in the will, since there is the possibility of using the husband’s biological material to fertilise the wife, even if the former has died. That is to say, even if the husband has died, the wife can be fertilised after his death and bear offspring of the husband. This is stated in Law 14/2006, of 26 May, on assisted human reproduction techniques, in its article 9.2 which says “the husband may give his consent, in the document referred to in article 6.3, in a public deed, in a will or advance instructions document, so that his reproductive material may be used within 12 months following his death to fertilise his wife. Such generation will produce the legal effects derived from marital filiation. The consent for the application of the techniques in these circumstances may be revoked at any time prior to their implementation.”
Therefore, the will is an appropriate way to give that consent, authorising the wife to use his biological material to fertilise herself within 12 months, producing the effects proper to filiation, as if he had been alive.
Request the deletion of the fingerprint in the will
The management of our digital presence after death is an increasingly relevant topic in the digital age. Drafting a digital will is a smart measure to ensure that our online profiles are handled according to our wishes. It is important to consider not only the deletion of sensitive data but also the preservation of valuable digital memories for our loved ones. The inclusion of passwords and the specification of timeframes for deletion are key aspects to facilitate this process. Protecting our digital rights is essential, and this practice demonstrates the importance of planning not only our physical inheritance but also our digital inheritance.
To erase your digital footprint on the internet, a simple option is to include it in your will, specifying the person or persons you wish to be responsible for this deletion, and you can specify that the deletion takes place after a certain period following your death. For this, it is advisable to detail your subscriptions, social networks, emails, etc., and include the passwords to allow the removal of your information; this data will be included in a sealed envelope or by incorporating a digital memory or pendrive into the will. All of this will be kept strictly confidential and protected in the notarial protocol.
All this is supported by the Organic Law on the Guarantee of Digital Rights, which grants you the right to decide the fate of your online information after your death, specifically in its article 96.
We have also written another article on this subject, which you can consult here:
Transfer of copyright and intellectual property rights
Article 42 of the Intellectual Property Law regulates the mortis causa transmission of copyright, which can be transmitted by will, allowing authors or holders of intellectual property rights to designate who will inherit their rights after their death, including both moral and economic content. Therefore, copyright can be included in a will like any other asset or right, it can be bequeathed to a specific person, it can be conditional, or, if nothing is said, it will be attributed to the heirs.
It should be borne in mind that the economic or exploitation rights of the work will generally have a duration of 70 years, counting from the first of January following the author's death.
Frequently asked questions about how to make a will
The joint or mutual will between spouses can only be granted in certain regional laws, such as those subject to Aragonese, Galician, Basque or Navarrese law.
Under common law or Catalan law, this type of will cannot be granted, but both spouses must each grant their will in a separate document.
In the testamentary field, there is the possibility of excluding the other parent from the administration of the assets that the children receive by inheritance. To do this, it is enough to include a special clause in the will, appointing the person who will be in charge of such administration and expressly stating that the ex-spouse is excluded from the administration of those assets.
Thus, upon the testator's death, the children will inherit and be the owners of the assets, but the power of disposal and administration of them will not fall to the ex-spouse, but to the person who has been appointed administrator in the will, who must be a person of the utmost trust, who will look after the testator's children.
By establishing an administrator in the will, it is ensured that this trusted person manages the assets that have become part of the minor children’s estate, thus preventing the ex-spouse from doing so by virtue of exercising parental authority. In this way, the appointed administrator will be the one who has the signature on the bank accounts, who decides on the rental of inherited properties, and who must initiate the necessary legal proceedings to authorise, for example, the sale of any asset that forms part of the inheritance.
Useful links and recommendation from JLA Notarios
With this, our guide on how to make a will concludes. Remember that making a will is a crucial step to ensure that your wishes are fulfilled and that your loved ones are protected.
Below we provide links of interest from the General Council of Notaries website, if you want to know more about wills:
- Notaries explain the advantages of making a will
- I want to make a will before a notary, what steps should I take and where will it be kept when I pass away?
On our part, we will be delighted to assist you if you wish for professional and personalised advice to make your will. With our team of Notaries in Wills, you will receive comprehensive and reliable advice so that your will faithfully reflects your wishes and complies with all current legal regulations.
You have different ways to contact us, either by e-mail, through the contact form on our website or by visiting us at our notary office in Barcelona. We will be delighted to assist you!
