Testamento notarial abierto (open will made before a notary)

Legal basis and things to bear in mind

• Legal framework: arts. 662-743 + 806-857 CC (wills and forced heirship) + Annex II of the Reglamento Notarial (RGAUV) + the regional civil laws (Cataluña, Aragón, Navarra, Galicia, País Vasco, Illes Balears) + EU Regulation 650/2012 for cross-border successions.
• Capacity: anyone over 14 may make a will, except a person who at the time cannot form or express their wishes even with aids or support (art. 663 CC, as worded by Ley 8/2021). A person with a disability may make a will if, in the notary's judgement, they understand and can express the scope of their provisions (art. 665).
• Forced heirship, COMMON LAW: descendants 2/3 (1/3 strict + 1/3 betterment) + 1/3 free; ascendants 1/2 if alone, or 1/3 if there is also a spouse; the spouse takes a life interest over 1/3 if there are descendants, 1/2 if there are ascendants, 2/3 if alone.
• Forced heirship, REGIONAL LAWS: highly variable. Cataluña: a 1/4 forced share for descendants, with greater freedom. Aragón: a collective forced share of 1/2 for descendants, with the fiducia. Navarra: the forced share is purely formal, with no enforceable financial content, but the surviving spouse has by law a life interest over all the assets of the deceased, unless it was waived in a public deed (leyes 253 and 267 of the Fuero Nuevo). Galicia: a 1/4 forced share with a broad betterment. País Vasco: a 1/3 forced share for children and descendants, which may be left to just one of them, excluding the rest; troncalidad (lineal-property rules) in the tierra llana of Bizkaia, Aramaio and Llodio; freedom of testation in the Ayala valley. Illes Balears: the children's forced share is 1/3 if there are four or fewer and 1/2 if there are more than four, the same on all the islands (arts. 42, 65 and 79 of the Compilación).
• A will is a FORMAL and UNILATERAL act: it is made by the testator before the notary, who attests to it. Two witnesses are only needed if the testator states that they do not know how to sign or are unable to sign, or if the testator or the notary asks for them (art. 697 CC, as worded by Ley 8/2021).
• The notary reports it ex officio, within three days, to the Dean's office of their Colegio Notarial, which passes it on to the RGAUV (Ministerio de Justicia) (arts. 11 to 13 of Annex II of the Reglamento Notarial). The register records who made the will, before which notary, where and when, not its content (art. 4). After death, the certificate of last wills can be requested once fifteen days have passed since the death, on proof of it (art. 5); it shows whether there is a will and before which notary it was made, and without it inherited property cannot be registered (arts. 76 and 78 RH).
• Revocation: by a later will (art. 739 CC), which revokes the earlier one by implication, or by a will that expressly revokes it; in both cases, with the formalities required to make a will (art. 738 CC). Destroying the plain copy does not revoke anything; the original stays in the notary's records.
• The notary cost is very low (40-150 €). No ITP and no proportional AJD is payable on a will: only the stamp duty on the notarial paper, included in the notary's invoice. Inheritance tax (ISD) will be paid by the heirs and legatees: it accrues on the day of death, not when the estate is accepted (art. 24.1 of Ley 29/1987).
• Natural next steps: aceptacion_herencia / particion_herencia / declaracion_herederos (if someone dies without a will) / isd_sucesiones / instrucciones_previas (living will).
• We recommend REVIEWING your will whenever something substantial changes: marriage or divorce (a will in favour of an ex-spouse is not automatically revoked, except in some regional territories), the birth of descendants, the death of an intended heir, or the sale of assets left as specific legacies.