Spanish will and power of attorney: what they are for and how to make them

An open notarial will is the one made by public deed before a notario (article 694 of the Código Civil, the Spanish Civil Code). You state your wishes, the notario puts them into legal wording and guarantees that the document is valid. It is the most common and the safest way of making a will in Spain.

It is worth making one because it avoids intestate succession (sucesión intestada), which is slower and more expensive for your family. With a will you appoint your heirs, you can leave specific legacies, name an executor or provide for the guardianship of minor children, and you adapt the division to your real family situation.

The notario keeps the original and issues as many copies as are needed. You can change your will as many times as you want during your lifetime: the last valid will revokes the earlier ones, unless you state in it that you want the earlier one to remain in force in whole or in part (article 739 of the Código Civil). It is not a final or unchangeable document.

The legítima is the portion of the estate that the law reserves for certain relatives, known as forced heirs (herederos forzosos), and which you cannot dispose of freely (articles 806 and 807 of the Código Civil). The forced heirs are, in this order: children and descendants; failing them, parents and ascendants; and the surviving spouse, in the way the law sets out.

Under the common Código Civil regime, when there are children the estate is divided into three equal parts, or tercios: the tercio de legítima estricta (the strict forced share, shared equally among the children), the tercio de mejora (which you can distribute freely among children or descendants) and the tercio de libre disposición (which you can leave to whoever you want). Children are entitled to two thirds of the estate (article 808).

The surviving spouse is entitled to a life interest (usufructo) over part of the estate, and the proportion depends on who they inherit alongside. Managora works out these limits in your specific case before drafting the will, so that your wishes are fully valid and do not encroach on any legítima.

Important: Cataluña, Aragón, Navarra, País Vasco, Galicia and the Islas Baleares have their own regional civil law (derecho civil foral), with forced shares different from the ones described here. Managora checks which rules apply to you according to your vecindad civil (the regional civil status that decides which civil law governs you).

When you make your will, the notario reports it to the Registro General de Actos de Última Voluntad (the General Registry of Last Wills) at the Ministerio de Justicia (the Spanish Ministry of Justice). That registry does not keep the contents of the will, it only records that you made one and before which notario, so that it can always be traced.

When a person dies, their heirs need the certificado de actos de última voluntad (last wills certificate) to find out whether there was a will and to be able to deal with the estate. The application cannot be filed until 15 working days have passed since the death, and it requires the full death certificate.

Managora obtains this certificate for you when we handle an estate, and we also request the copies of the will from the notario who holds it.

A poder notarial (notarial power of attorney) is the deed by which you (the poderdante, the grantor) authorise another person you trust (the apoderado, the attorney) to act in your name. It is signed before a notario, who checks your identity and your capacity and attests to the act.

A general power gives the apoderado a wide range of powers: managing your assets, collecting and making payments, signing before public bodies or representing you at the bank. A special power is limited to one specific matter, for example selling a particular property, accepting an inheritance or carrying out a one-off procedure before the Administration.

You can revoke a power of attorney at any time before a notario, and it is advisable to notify the apoderado of the revocation. Bear in mind that there are strictly personal acts that another person can never carry out with a power of attorney, such as making your will.

The poder preventivo (preventive power of attorney) is a voluntary support measure regulated after the reform brought in by Ley 8/2021 (the Spanish law reforming support for the exercise of legal capacity), in articles 256 to 262 of the Código Civil. It lets you decide today, while fully lucid, who will represent you if in the future you need support to exercise your capacity, and so avoid court proceedings.

There are two types. The first is the power with a subsistence clause: it takes effect from the moment it is signed and stays in force even if you come to need support. The second is granted only for the future: it starts to take effect only once that need for support is proven, in the way you have laid down.

The poder preventivo is signed before a notario and reported to the Registro Civil (the Spanish civil registry, which records births, marriages and deaths). It is a way of planning ahead and appointing someone you trust in advance, instead of leaving that decision to a judge.

A notarial will is one of the cheapest documents there is, because its cost is set by the notarial fee scale (arancel notarial) and is usually low. A poder notarial also costs little. We do not give exact figures here: you can see the current amount on the service page (notarial will and power of attorney).

Managora takes down your wishes, prepares the draft document respecting the legítima that applies to you and arranges the appointment with the notario. A will and a power of attorney require you to appear before the notario in person, so that step is always taken by you, but with us alongside you and everything prepared in advance.

Afterwards, where relevant, Managora obtains the copies and, in the case of an estate, the certificado de actos de última voluntad. All you have to do is decide; we take care of the rest of the procedure.