Frequently asked questions about wills
When we need to find a Notary for wills we are usually full of doubts that we need to resolve. To this end, we offer you the following answers to the frequently asked questions about wills that arise in our notary office in Barcelona.
We will divide them into three phases:
- those related to when to do it
- the content and limits of the will
- its provisions and conditions
When to make a will?
At what age can a will be made?
In Spain, any person over 14 years old can make a will, provided they have sufficient capacity to understand the scope of what they are doing. It is not necessary to wait until reaching the age of majority.
Practical example: a 16-year-old young person with a small inheritance from their grandparents could arrange their succession through a will.
Is it necessary to have assets to make a will?
No. The will does not require that specific assets be owned at the time of making it. What matters is the foresight.
Practical example: a single 30-year-old person, without significant assets, can designate their parents or siblings as heirs. If in the future they acquire a property or savings, those assets will automatically be subject to the will already made.
What is the best time in life to do it?
The answer is clear: any time is a good time to make a will. A will is a planning tool that is advisable to have from early stages of life, and which can be modified later. However, there are particularly recommended situations:
- When getting married or starting a stable cohabitation.
- When having children, especially if they are minors.
- When acquiring a home or other valuable assets.
- After a divorce or a significant change in the family.
- In case of serious illness.
The most common mistake is to think that a will is only made in old age or when death is near. At the notary's office, we see daily that families appreciate having made it in good time.
Can I change my will as many times as I want?
Yes. The will is revocable: a new one can be made at any time, and the most recent one will be the valid one.
Practical example: a person who makes a will in favour of their spouse and, after a divorce, decides to revoke it and leave their assets to their children. The new will automatically replaces the previous one.
Find out here why its processing is recommended:
Content and limits of the will
The will is a very flexible instrument, but not unlimited. The law sets certain limits and obligations that every testator must know before granting it.
What can I freely decide in my will?
The testator can freely dispose of a part of their estate (the so-called “free disposal portion”) and also:
- Name heirs and legatees.
- Appoint an executor to carry out their will.
- Distribute specific assets to family members or third parties.
- Establish improvements in favour of certain descendants.
- Include personal provisions, such as the wish to be cremated or the choice of cemetery.
Practical example: a person with two children can leave the legitimate share corresponding to both and, in addition, use their free disposal portion to benefit a niece who has cared for them for years.
Learn more about this in these related articles:
What is the meaning of the legitimate portion and how does it limit my freedom when making a will?
The legitimate portion is the part of the inheritance that the law obligatorily reserves for certain heirs (called forced heirs). In Spain, it varies according to the applicable legislation:
- In the common Civil Code, it corresponds to the descendants two thirds of the inheritance (one of strict legitimate portion and another of improvement).
- In Catalonia, the legitimate portion is one quarter of the estate, to be divided equally among all the children.
This means that the testator cannot completely deprive their children (or other forced heirs) of the inheritance, except in exceptional cases of disinheritance.
Discover more here:
Disinheritance and the causes of disinheritance
A child can be disinherited, but only in cases expressly provided for by law. Disinheritance cannot be based on a simple unilateral decision: it must be supported by legal grounds and, furthermore, reflected in the will.
Among the causes accepted by the Common Civil Code and the Civil Code of Catalonia, are included:
- Serious physical abuse.
- Refusal to provide maintenance to the testator.
- Attempting against the life of the testator or their relatives.
- Psychological abuse or serious lack of family relationship, expressly recognised in Catalonia and accepted in common law through the jurisprudence of the Supreme Court.
This means that emotional abandonment or the total absence of relationship between parent and child can justify disinheritance, provided it is serious, continuous and proven.
Practical example: a father who has had no contact whatsoever with a child for decades could invoke the lack of relationship as a cause for disinheritance. However, in the event of a challenge, it will be the courts who assess whether the requirements are met.
In short, disinheritance due to lack of relationship or psychological abuse is possible, but requires solid grounds and evidence to prove that situation.
You can find more information at this link:
What happens if I do not have compulsory heirs?
If the testator has no descendants, ascendants, or spouse, they enjoy full freedom to leave their assets to whomever they wish: distant relatives, friends, or even charitable organisations and NGOs.
Practical example: a single person, with no children or living parents, can leave their estate to a medical research foundation or a close friend.
Can conditions be imposed in the will?
Yes. The testator can link the allocation of an asset or an inheritance to a specific condition, provided that it is neither unlawful nor impossible.
- Valid example: leaving a house to a child on the condition that they do not sell it within a period of 10 years.
- Invalid example: conditioning the inheritance on the heir never getting married, as this would go against personal freedom.
What happens if I die without having made a will?
When a person dies without a will, intestate succession or ab intestato is opened. In that case, the law decides who the heirs are and in what order.
- Under Common Law (Civil Code):
- Children and descendants, in equal parts.
- If there are no children, the parents and ascendants.
- If there are no ascendants, the widowed spouse inherits.
- Then the brothers and nephews.
- Finally, other relatives up to the fourth degree, and failing all of them, the State.
- In Catalonia (Civil Code of Catalonia):
- The children and descendants inherit first, always in equal parts.
- If there are no descendants, the widowed spouse or partner in a stable relationship inherits, with certain particularities.
- If there is no spouse nor stable partner, the parents and ascendants succeed.
- Then, the brothers and nephews.
- Finally, the other collateral relatives up to the fourth degree.
Practical example: a widowed person without children dies in Catalonia. Their heirs will be their parents (if alive). However, under common law, in the same case the widowed spouse would inherit first, and only in their absence the parents.
In both regimes, the absence of a will generates more procedures, higher costs and less control over the distribution of assets.
You can find more information about this here:
What should be done when the testator dies?
This is one of the most frequently asked questions in notary offices. The basic steps to be able to process the inheritance are:
- Obtain the death certificate. It is issued by the Civil Registry of the place of death.
- Request the certificate of last wills. It certifies whether the deceased made a will and at which notary’s office.
- Request an authorised copy of the will. Only heirs or persons with a legitimate interest can request it.
- Gather the asset documentation. Property deeds, bank certificates, insurance policies, etc.
- Go to the notary’s office to process the inheritance deed.
If there is no will, instead of step 3, a declaration of heirs abintestato before the competent notary is processed according to the last domicile or place of death of the deceased.
Practical example: when a person dies in Barcelona, their child requests the certificate of last wills from the Ministry of Justice. With it, they go to the notary’s office where the will was signed and request an authorised copy to be able to start the inheritance division.
Learn more about each of these documents and how to obtain them in our post:
Less common but important questions about testamentary provisions
In addition to the more well-known issues, at the notary's office we receive other questions that, although less frequent, have great practical importance.
It is possible. But in practice it does not make much sense: the will is always opened after a few days have passed since the death of the testator (at least 15 working days after the death is registered in the Civil Registry). By then, the burial or cremation will already have taken place.
What is really advisable is to grant another different notarial document: the living will or advance directives document. In it, you can record:
- Whether you want to be cremated or buried.
- The destination of the ashes or the burial place.
- The type of ceremony desired.
- The wish to donate organs.
Besides granting it, it is advisable to give a copy to family members and trusted people, and to talk to them directly so that they know and respect that wish when the time comes.
Practical example: a person grants an advance directives document in which they request to be cremated and their ashes scattered at sea. They inform their children and give them a copy, thus ensuring that their wish is fulfilled.
Yes. The free disposal part of the estate allows the testator to benefit persons who are not compulsory heirs, or even institutions, foundations and NGOs.
This is increasingly common, as many people wish for part of their estate to have a charitable purpose.
Practical example: a testator leaves 10% of their inheritance to a cancer research foundation, and distributes the rest among their children.
Yes. The will is the most appropriate instrument to appoint the person the testator wants to be the guardian of their minor children in the event of the death of both parents.
However, it should be noted that the appointment made in the will is not an absolute imposition, but rather a legally recognised preference: the judge will assess the suitability of the appointed guardian and, unless there is a reason to advise against it, will respect the testator's wishes.
Therefore, it is very advisable to clearly record the choice of guardian in the will and, as far as possible, to speak beforehand with the chosen person to ensure they accept that responsibility.
Practical example: parents with two minor children decide to appoint the mother’s sister as guardian in their will. When both pass away, the judge reviews the aunt’s suitability and, finding no impediments, formally appoints her as the children’s guardian.
Yes, the testator can impose conditions on the provisions of their will, but always within legal limits.
- Valid conditions: these are those that have a reasonable purpose, are possible to fulfil, and do not infringe fundamental rights. For example, handing over a property on the condition that the heir keeps it for a certain time or completes their university studies.
- Null conditions: these are those that impose an unlawful, impossible obligation or affect basic personal rights. For example, conditioning the inheritance on never marrying or changing religion.
In practice, conditions must be drafted precisely, because if they are ambiguous or contrary to the law they may give rise to legal conflicts or even the nullity of the testamentary provision.
Practical example: a grandfather bequeaths a commercial premises to his grandson on the condition that he maintains the family business there for 5 years. This condition is valid because it is clear, temporary and does not infringe fundamental rights.
Conclusion: the importance of making a will
The will is, without a doubt, one of the most useful and accessible legal instruments that exist. With a simple, economical and quick procedure, anyone can ensure that their wishes are fulfilled and spare their heirs lengthy procedures, unnecessary expenses and possible conflicts.
Notarial experience shows that the will is not just a matter of assets: it is also a form of personal and family planning, which provides peace of mind both to the testator and to those they love most.
The will does not mean thinking about death, but organising the lives of those left behind. The sooner it is granted, the sooner security is gained. And if circumstances change, it can always be modified or revoked.
For this reason, our recommendation is clear: do not wait for a critical moment to make a will. Go to your trusted notary, resolve your doubts with a professional and have your wishes recorded with full legal certainty. Your heirs will thank you.
