Can the testator freely dispose of their goods?

In relation to the forms of will, and very unusual (will military, maritime and notarial closed), there are two classes that are the most common:

1 .- The holograph: What does the testator's own hand and which should contain the year, month and day is done. The words crossed out, amended or between the lines has to save the testator by his signature. It would be no absence of any of these requirements. The problems posed by the complexity of "notarized" by complex and expensive legal proceedings for the heirs.

2 .- The Will Open by public deed before a notary. The notary also advise the testator is responsible for the preservation of the original will being in possession of the testator giving a copy. In order to do the Notary will ask for the ID of the testator and the complexity of the deed or will may ask for more information. He shall be granted without requiring the intervention currently witnesses, except in certain cases.

Except in cases of disinheritance C. Civ regulated in very rare and there is a legal obligation to leave some (legitimate) to the heirs (children and descendants, parents and ancestors and a widow or widower). The rules are not equal for all the national territory and that there are so-called Rights Councils (Catalonia, Aragon, Navarra, Basque Country and of the Balearic Islands) which are regulated differently.

In the rest of Spain which would correspond to each heir would be: (Arts. 806-822 C. Civil)

- The children and descendants: 2 / 3 thirds of the inheritance: third in equal shares to the children, and one third (improvement) to the children and grandchildren, but the third can be distributed freely among themselves or leave it to one of the descendants.

- Parents and ancestors: if you have no children or descendants, leave one third of the inheritance to the ancestors to survive if they concur with the widow, and half of the inheritance otherwise. If no descendants, parents have no rights.

- Widow or widower, if the testator has children or descendants, have to leave a third of the estate in usufruct. - If you go with ancestors only entitled to the usufruct of half the inheritance. - If no descendants or ascendants nor entitled to the usufruct of two thirds of the inheritance.

One of the most common wills is "From each other, and then for the children", consisting in the case of a marriage with children is going to make a will. The idea is that the widow / widower is left with the highest possible rights and can continue to enjoy your home or property while you live, then moving on to their children equally. Usually we pass the usufruct "universal", ie everything that had the deceased to the surviving spouse. We must also clarify that the widow / widower may freely dispose of their half of acquisitions (since this part is not perceived by the deceased's estate, but were already own).

In case you die without a will, the testator had not designated his heirs established by law, distinguishing whether or not children. We will have to formalize a "declaration of heirs" is a public document that defines who are the relatives entitled to the inheritance according to law provisions.

If, according to the rules we have seen, inherited by descendants, parents or spouse, heirs statement is made before the Notary of the place where the deceased had his last domicile. Will be needed to do a series of documents (DNI. of the deceased, death certificate, certificate of registry of Last Will, Family Book, at least) and two witnesses who know the first family of the deceased but not are relatives. If under the law are heirs others (siblings, children of brothers or more distant relatives grade), the declaration of heirs has to judge, subject to the procedures provided by law.

Author: M ª Dolores Ortiz (Lawyer)

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