How to Make a Will in Spain: Types, Rules and Costs

🇪🇸 Read the original in Spanish

Planning for the future and ensuring the peace of mind of our loved ones is one of the most responsible decisions we can make in life. In Spain, a will is the ideal legal tool to guarantee that our assets are distributed according to our wishes after our death, avoiding family conflicts and costly procedures to declare heirs. Despite the popular belief that it is a complex and expensive process, making a will in Spain is a simple, cheap, and accessible procedure for anyone, including foreign residents who have made their home in Spanish territory.

Why is it essential to make a will in Spain?

Succession mortis causa (upon death) in Spain is not a process of absolute free will. The Spanish Código Civil (Civil Code) and the different regional civil laws strictly regulate how assets must be distributed.

If a person dies without a will (known legally as ab intestato or intestate succession), the law will designate the heirs following a mandatory order of kinship. This can lead to unwanted situations, such as the surviving spouse being left unprotected against the children, or assets with high sentimental value ending up in the hands of relatives with whom there was no relationship.

Making a will allows you to:

• Guarantee the protection of the surviving spouse through the usufructo viudal (widow's usufruct) or the bequest of the usufructuary share.
• Designate guardians for minor children or extended parental authority for children with disabilities.
• Distribute specific assets to specific people (legados or bequests).
• Save time, money, and emotional stress for the heirs at the time of the partition.

The legal framework: The "legítima" and regional laws

To understand how to make a will, we must first understand the limits imposed by law. The Spanish Civil Code (in its Artículo 806 and following) establishes the concept of the legítima (forced share), which is the portion of assets that the testator cannot dispose of because the law has reserved it for certain heirs, called herederos forzosos (forced heirs: children and descendants; in their absence, parents and ascendants; and the spouse).

The Civil Code system (Common Territory)

In the autonomous communities governed by the common Civil Code, the inheritance is conceptually divided into three thirds:

1. El tercio de legítima estricta (The strict forced share third): This is distributed in equal parts among the children and descendants. The testator cannot choose how to divide this.
2. El tercio de mejora (The improvement third): This must also be distributed among children and descendants, but here the testator can benefit some over others (for example, leaving this entire third to just one child).
3. El tercio de libre disposición (The free disposal third): The testator can leave this to whoever they want, whether a relative or not, a natural person or a legal entity (such as an NGO).

The specialty of the Derechos Forales (Regional Civil Laws)

Spain has a rich legislative diversity, and several Autonomous Communities have their own Civil Law (Derecho Foral), which substantially modifies these rules:

• Catalonia: The legítima is only one-quarter (25%) of the value of the inheritance, and the surviving spouse has the right to the "año de viudedad" (widow's year) and the "cuarta viudal" (widow's fourth) if they lack resources.
• Basque Country: There is great freedom. In Biscay, for example, the legítima is one-third, but "free selection" is allowed, meaning you can set aside some children and leave the entire third to just one, or even to the grandchildren, bypassing the children. Other special rules apply in Gipuzkoa and Álava.
• Aragon: The collective legítima is half (50%) of the inheritance, which can be freely distributed among the descendants.
• Galicia: The legítima of the children is one-quarter (25%) of the value of the estate.
• Navarre: There is almost absolute freedom of testation thanks to the "legítima navarra", which is purely formal (the attribution of "five feeble shillings or of the flame and fifteen robadas of common mountain land").

Types of wills in Spain

The Spanish Civil Code contemplates different ways of making a will, adapted to the circumstances of each person. The most common are:

1. Testamento abierto notarial (Open notary will)

This is the most common, secure, and recommended option. It is made before a Notario Público (Public Notary), who drafts the document in accordance with the wishes expressed by the testator and guarantees that all legal requirements are met. The original remains in the custody of the notary's office, and a notification is sent to the Registro General de Actos de Última Voluntad (General Registry of Last Will Acts), ensuring it will never be lost.

2. Testamento cerrado (Closed will)

The testator writes their last wishes in secret (by hand or typed) and places them in a sealed envelope. Subsequently, they go to the notary, who authorises the act of execution on the envelope itself, without knowing the content of the document. It has the disadvantage that, as it is not reviewed by a professional, it may contain clauses that are null or contrary to the law.

3. Testamento ológrafo (Holographic will)

This is handwritten by the testator themselves. To be valid, it must meet very strict requirements: it must be written entirely by the testator, signed, and contain the exact date (day, month, and year). It cannot have crossings-out or uncorrected amendments.

Although it seems simple, it has serious drawbacks: it is easy to destroy or hide by disgruntled heirs, and after death, it requires a complex and expensive judicial or notarial process of "adveración y protocolización" (verification and protocolisation) to prove its authenticity, the cost of which far exceeds that of a notary will.

4. Special wills

There are exceptional forms for extreme situations: the military will (during a war campaign), the maritime will (during a voyage on board a vessel), and the will made in imminent danger of death or in the event of an epidemic (which allows testating before witnesses without a notary, under strict expiration conditions).

How much does it cost to make a will in Spain?

One of the biggest myths is that making a will is expensive. On the contrary, it is one of the cheapest legal procedures in Spain, as notary fees are regulated by a tariff set by the Government.

The cost of a standard open will usually ranges between €40 and €80. The exact price may vary slightly depending on:

• The length of the document (number of pages).
• If it is carried out during special hours or outside the notary's office (for example, if the notary has to travel to a hospital or home due to the testator's illness, which increases the cost for travel and out-of-office fees).
• The complexity of the will (if it includes many specific bequests or complex clauses).

Even in the most complex cases, the cost rarely exceeds €100 or €120.

Practical steps: How to make a will step-by-step

If you have decided to draft your will, these are the practical steps you should follow:

1. Reflect on the distribution: Make a mental inventory of your assets and decide who you want to protect. Think about whether you want to leave specific bequests (a property, a piece of jewellery, a bank account) and who you will designate as heirs.
2. Choose a notary's office: You can go to any notary in Spain; there is free choice of notary. It does not have to be the one in your town, although that is the most convenient.
3. Request an appointment: Call or write to the chosen notary's office indicating that you wish to make a "testamento abierto".
4. Provide the necessary documentation: You must present your valid Documento Nacional de Identidad (DNI), NIE, or passport. It is not necessary to bring the deeds to your properties; it is enough to describe the assets you want to bequeath.
5. Interview with the notary: The notary will listen to you, analyse your family situation, and advise you legally so that your wishes fit within the law (respecting the legítimas).
6. Drafting and reading: The notary will draft the blueprint. On the day of signing, they will read the document aloud to ensure you agree with every point.
7. Signing and registration: You will sign the document. The notary will be responsible for electronically sending the information to the Registro General de Actos de Última Voluntad (Ministry of Justice). You will take home an "copia autorizada" (authorised copy).

Practical examples of estate planning

To understand how these rules operate in practice, let us analyse two common scenarios under the common Civil Code.

Example 1: The "one for the other" will (Married couple with children)

Carlos and Sofía are married under the gananciales (joint matrimonial property) regime and have two children together. Their main assets are a family home valued at €240,000 and a savings account with €30,000. They want to make sure that if one dies, the other can continue living in the house without the children being able to kick them out.

• The legal solution: They grant reciprocal wills with the "Socini" clause. In his will, Carlos bequeaths to Sofía the universal and lifetime usufruct of all his assets. At the same time, he institutes his children as equal heirs.
• The practical outcome: If Carlos dies, Sofía has the right to use the house and enjoy the savings for life. The children inherit the "nuda propiedad" (bare ownership). If any child does not accept their mother having the usufruct of everything and demands their strict legítima immediately, the "Socini" clause penalises them: that child will only receive their share of the strict legítima third (1/6 of the total), losing any rights over the improvement and free disposal thirds, which will go to increase the share of their respectful siblings.

Example 2: Single person with no children and properties

Andrés is single, has no children, and his parents have already passed away. His estate consists of an apartment valued at €180,000 and a vehicle worth €15,000. He wants his apartment to go to his best friend, Luis, and the car to his nephew, Mateo.

• The legal solution: Having no forced heirs (neither descendants nor ascendants), Andrés has total freedom of disposition over 100% of his estate.
• The practical outcome: Andrés drafts an open notary will where he establishes a "legado" (bequest) of the car in favour of Mateo, and institutes his friend Luis as the universal heir of all his remaining assets (including the apartment). Upon Andrés's death, the distribution is executed exactly as he planned, preventing his assets from ending up in the hands of the State or distant relatives with whom he had no relationship.

Mistakes you must avoid

When planning your inheritance in Spain, it is crucial to avoid certain common mistakes that can invalidate the document or generate serious tax problems for your heirs:

• Forgetting about taxation (Inheritance Tax): Although the will defines who receives what, the tax bill can vary enormously depending on the Autonomous Community of residence of the deceased. Leaving a property to a friend or nephew instead of a child can mean paying up to 34% or more in taxes due to the lack of allowances for collateral relatives or strangers.
• Not updating the will after a divorce: Under common law, if you make a will in favour of your spouse and then divorce, the provision in their favour is not automatically revoked by law in all regions. It is essential to grant a new will after a break-up to expressly exclude your ex-partner.
• Trying to disinherit without a solid legal basis: Disinheriting a child in Spain is extremely difficult. The Civil Code requires very serious and specific grounds (such as duly proven physical or psychological abuse). If you disinherit a child without solid proof, they can challenge the will and annul the distribution.
• Not providing for "sustitución vulgar" (standard substitution): If you institute a sibling as heir and they die before you, their share could end up in limbo or go to unwanted people. It is vital to include the "sustitución vulgar" clause (e.g., "I institute my sibling as heir, and failing them, their children by lineage").

Frequently Asked Questions (FAQ)

What happens if a foreign resident in Spain makes a will here?

According to the European Succession Regulation (Regulation EU 650/2012), the law applicable to the succession of a person is, by default, that of their habitual residence at the time of death. However, the rule allows any foreign citizen to expressly choose in their will that the law of their nationality should apply. This is very useful for British, French, or German citizens who wish to avoid the strict legítimas of Spanish law and apply the absolute freedom of testation of their home countries.

Can a will be changed once signed?

Yes, a will is an essentially revocable document. You can change it as many times as you wish throughout your life. The valid will that will take effect after death will always be the last one granted (the most recent date), which automatically revokes all previous ones, unless specified otherwise.

Is it mandatory to make a will in Spain?

No, it is not mandatory. If you do not make one, the rules of intestate succession (ab intestato) will apply. However, the process for the heirs will be longer, requiring a notarial act of notoriety for the declaration of heirs, the cost of which (around €200 to €350) is much higher than that of a simple will.

Can a will prevent my heirs from paying taxes?

No. The will regulates under civil law who is entitled to the assets, but it does not exempt them from paying Impuesto sobre Sucesiones y Donaciones (ISD - Inheritance and Gift Tax). However, good estate planning (such as usufruct or strategic distribution of assets) can help optimise the tax burden of the heirs within the framework of the Inheritance Tax Law.

In summary

• Making a will in Spain is a quick, simple, and very cheap procedure, with an average cost of between €40 and €80.
• The open notary will is the safest option, as it has the advice of the notary and is registered indestructibly.
• Spanish law limits the freedom of testation through the legítima, reserving a portion of the assets for forced heirs, although the rules vary by Autonomous Community (regional laws).
• Foreign residents in Spain can choose in their will that the law of their nationality applies instead of Spanish legislation.
• The will can be modified or revoked at any time in life; the last one drafted always cancels the previous ones.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.