What exactly is an open will?

An open will is the most common form of last will and testament under Spanish civil law. Its main feature is that the testator clearly states their wishes regarding the distribution of their assets before a public notary. Unlike other forms, the notary knows the exact content of the document and provides legal advice to the testator to ensure that all clauses comply with current legislation.

Once signed, the notary drafts the public deed and proceeds to register the existence of the act in the General Register of Last Wills and Testaments (Registro General de Actos de Última Voluntad). It is important to note that the full content of the will is not sent to the register, but only the record that the person has executed a will on a specific date at a specific notary's office. The privacy of the content remains protected until the testator's death, at which point individuals with a legitimate interest may request an authorised copy.

How much does it cost to make an open will in Spain?

The price of an open will is regulated by the State through the Notarial Fee Scale regulated under Royal Decree 1426/1989. This means that all notary offices apply the same base fees for this standard procedure.

In general terms, the fee for a simple, straightforward will ranges between 38 and 80 euros. However, the final amount of the notary invoice varies according to several technical factors:

• Length of the document: The base fee covers a specific number of pages. If the testamentary provisions are lengthy or detail an extensive inventory of assets, an additional fee is charged for each extra page.
• Authorised and simple copies: Requesting additional copies required by the testator or their representatives increases the final cost.
• Notary travel: If the testator is unable to visit the notary's office due to health issues and requires the notary to travel to their home or hospital, the surcharges provided for in the fee scale apply.
• Applicable taxes: The corresponding Value Added Tax (VAT) must be added to the notary fees.

Advantages of making an open will before a notary

Choosing an open will over options such as a closed will or a holographic will provides important legal guarantees for the testator and their heirs:

• Professional legal advice: The notary ensures that the provisions respect the statutory shares (legítimas) of forced heirs, reducing the risk of future legal challenges.
• Security and preservation: The original document is permanently safeguarded in the notary protocol, preventing risks of loss, destruction, or falsification.
• Ease of subsequent administration: Following the deceased's death, locating the will is straightforward via the certificate of last wills, streamlining the distribution of the estate.
• Evidential weight: As it is a public document, it enjoys a presumption of veracity and proves the civil capacity of the testator at the time of execution.

Requirements for executing an open will

To formalise an open will, the procedure is straightforward and accessible. The essential requirements established by law include:

1. Official identification: Presenting a valid National Identity Document (DNI), passport, or residence card.
2. Minimum age: The regulations permit executing this will from the age of 14, provided the person has the capacity to intend and understand the act.
3. Mental capacity: The notary must assess that the testator has full legal capacity at the time of execution.
4. Involvement of witnesses in special cases: As a general rule, witnesses are not required. They only step in when the testator cannot or does not know how to sign, is blind, cannot read, or when the notary explicitly requests it.

Open wills and inheriting property

Including real estate in an open will allows for the precise allocation of homes, commercial premises, or land, specifying distributions by percentages or through specific bequests. Proper testamentary planning avoids complex joint ownership situations among heirs.

When inherited properties have outstanding mortgages or require debt restructuring to proceed with the division of the estate, it is advisable to consult intermediarios de crédito inmobiliario to negotiate with financial institutions or seek financing solutions tailored to the heirs' new circumstances.

If inheriting a Subsidised Housing (VPO) property located in the Comunidad de Madrid, the heirs must check the specific regional regulations regarding maximum sale prices and current eligibility requirements before processing the transfer or sale of the property.

Differences between an open, closed, and holographic will

To understand the value of an open will, it is useful to know how it differs from the other main forms:

Open will

Executed before a notary, openly stating the last will. It guarantees compliance with the law and prevents formal errors that could invalidate clauses.

Closed will

The testator delivers their wishes to the notary in a sealed envelope. The notary does not know the content, which can result in clauses contrary to regulations that complicate its future execution.

Holographic will

Entirely handwritten by the testator without initial notary involvement. Although it incurs no immediate outlay, its subsequent validation and probate after death are considerably more costly and complex than executing an open will from the outset.

Is it possible to modify an open will?

A will is a deeply personal and revocable act. Therefore, the testator can modify their open will at any time during their life by executing a new deed. The subsequent will automatically revokes the previous one regarding all incompatible provisions, ensuring that the latest document signed before a notary always prevails.