What is an open will?
Our clients often ask us what an open will is, so in this article we wish to explain what an open will means and its types. Wills have been a topic of debate for many years and can be problematic if not done correctly, which is why it is important to understand concepts that will help you secure your future against whatever may happen. If you are thinking of making one or have been told about it and do not know what it is, we will clarify it for you.
What does open will mean?
If you do not know what an open will means, this is the will in which the testator expresses their last will in the presence of the people who must authorise the act. It is done before a public Notary, who drafts what the testator states.
This ensures avoiding the typical errors that could lead to it being challenged.
Open wills can be of two types:
- Ordinary, the most common, before an authorised Notary.
- Extraordinary, not carried out before a Notary, but done in an extraordinary manner, such as in imminent danger of death with five witnesses or in an epidemic situation with two witnesses.
Be careful with the latter, since by dispensing with the notarial intervention that guarantees proper advice, they very often cause problems.
Requirements for an open will
The requirements for its correct validity are:
- Bring an ID card or identity document to a public Notary.
- Be over 14 years old.
- The Notary drafts it according to the verbal or written instructions of the testator.
- It is necessary to read it, confirm it, and sign it. Finally, the Notary is responsible for registering it in the Register of Last Wills.
- If the testator is blind, has difficulty reading the final document, does not know how to or cannot sign, two witnesses will attend the act.
Who must sign an open will?
As we have already mentioned, the open will is signed by the testator, except in cases provided for by law such as those mentioned above, in which witnesses must attend and also sign the final document.
In any case, it will be signed before a notary, so that it cannot be challenged nor will there be any problems after the person's death.
Learn more about this will and its differences with others:
Open, closed and holographic will
So, what is the difference with a holographic will? The risks involved in declaring an inheritance without a closed or holographic will are the same since the Notary does not intervene and cannot provide advice in its preparation.
While the closed will is granted before a Notary with two witnesses, the holographic will is handwritten and signed by the testator. When they die, the person who has kept it must present it to a Notary within 10 days. Likewise, this person will be responsible for any damages caused by its custody, and a judge must verify the identity of the testator through handwriting analysis and signature testimony.
Without a doubt, and considering the price of a simple open will, the easiest and quickest option is to process a will before a Notary. We leave you more information about its advantages in this related article:
Frequently asked questions about the open will
Once it has been established what an open will is, we wish to answer a multitude of related questions that you have sent us.
An open will is distributed as follows: in the first part the type of document is identified, the personal data of the testator and their capacity to grant it are included. Next come the legal clauses of the will, which usually contain at least the designation of who the heirs are.
An open will must include the signature of the testator, unless the person does not know how to sign or cannot, in which case it must be presented with two witnesses, who will sign on their behalf.
It is another way of referring to this document, which serves to express the last wishes and the distribution of assets after death.
The open will for a testator with children must comply with the legal provisions that guarantee these heirs the obtaining of the inheritance as forced heirs. The forced heirs will be those who have the right to the part of the inheritance known as the legitimate portion.
A simple open will usually costs around €50, except in testators with complex estates or wills that need to be drafted in other languages, among other particularities. As you can see, it is one of the most important documents that can be signed at a notary's office but it is also one of the cheapest.
If we talk about its writing, the open will must be granted before a Notary as they provide public certification of its validity and authenticity, ensuring that the testator is in full possession of their faculties and that the document complies with all formalities. However, in Spain, there is no opening of the will before a Notary, which is more typical of American movies than reality.
Once the testator has passed away, it will be the authorised Notary who delivers it at the request of the interested parties, such as heirs, legatees or executors.
The opening of a will before a Notary takes place after the death of the testator and rather than an opening, it is the delivery of a copy to the interested parties. For this, the death certificate will be required and must be presented before the Notary. If it is not known whether a will had been granted, a certificate must be requested from the General Registry of Last Wills. If there is no will, an inheritance without a will would be opened, proceeding to grant a declaration of heirs.
Yes, you can manage the inheritance after the death of a person at the notary office of your choice.
Although as a general rule the presence of witnesses is not necessary in open wills, when required, they must be of legal age and in full possession of their mental faculties. Furthermore, they must not have a direct interest in the inheritance.
If you wonder what you need to bring to make a will, you only need your ID card and the details of the people who will receive the inheritance.
With the open universal will, we find the distinction in which the testator leaves all their assets and rights to one or more universal heirs, without assigning the properties of the assets among them.
In this case, the will is granted by a single person, differing from joint or mutual wills with other people (common among spouses).
This document has full legal validity and can only be replaced when a new one is granted by the testator. It can only be challenged in specific cases.
In this case, different scenarios may occur such as delays in the distribution of assets that may cause disputes among heirs, the possibility of an intestate succession being opened, or potential problems with the settlement of the Inheritance and Donations Tax.
Open will before a Notary in Barcelona
In this article, we have wanted to explain, from our Notary Office in Barcelona, what an open will is, its types, and the differences with closed wills. If you need more information or have any doubts about inheritances in Barcelona, do not hesitate to contact our Notaries in Barcelona through the different available channels: either by e-mail at bcn@jlanotarios.com or the contact form on our official website. We will be happy to assist you.
If you want to learn more about this topic, we have several articles on our blog so you can delve deeper into it. We highlight, among them:
You can also access our Services in Wills and Inheritances to consult more related information.
