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How to make a will without going to the Notary?

Real Estate
How to make a will without going to the Notary?

Is it possible to make a will without going to the notary? Will this will be valid? Which people can make it? We associate the making of a will with a Notary, but the reality is that all people can make a will without going to the Notary, as long as they do it in the way that we will explain in this article.

Can you make a will without going to the notary?

As our inheritance lawyers tell us, it can indeed be done, and it is called a holographic will. Unlike the notarial will, the holographic will is a will that the testator (the one who dies) formalizes by himself, writing and signing the content of the will in his own handwriting without the intervention of any witnesses.

The holographic will is regulated by articles 688 to 694 of the Civil Code. In order to make this will correctly, the forms described in the articles of the Civil Code must be scrupulously observed, otherwise it will not be valid.

This is a type of will in which the Notary does not intervene, although it has the disadvantages of being forged, unknown, lost or destroyed. This type of will, and as it is made without a notary, requires that once the testator has died, and within a maximum period of 5 years, the will must be notarised. From our law firm, we recommend that people who want to make this type of will should ask for legal advice before doing so, as it is of vital importance to make the holographic will following all the guidelines and requirements that the law demands.

Which people can make a holographic will?

All persons who are of legal age can make a holographic will. Therefore, minors cannot make a holographic will.

What are the requirements for a holographic will to be valid?

- A person of legal age must make a holographic will.

- The will must be written in full and signed by the testator with an indication of the year, month and day it is granted. Therefore, a will drawn up and made by another person on behalf of the testator would not be valid.

- If the will contains words that are grated, crossed out or amended, the testator must correct them under his signature.

- Foreigners may make holographic wills in their own language.

- The will must be handwritten. A will that is written by computer, tablet, mobile phone, or similar is void.

- The will must be signed by the testator himself, and the fingerprint is not valid as a substitute for the signature.

- A signature at the end of the document will be sufficient to make the will valid.

 - The date must appear on the will in autograph form, either in numbers or letters. If this requirement is not met, the will is void.

What is probate?

 It is the formula used so that the private document made by the testator has public validity, and can generate all the effects that the law attributes to the will made before a Notary.

Probate consists of 3 phases: 

1) Presentation: The holographic will is presented to the Notary so that it can be notarized. The Notary must be contacted at the last address of the testator or the place where he died, within a maximum period of 5 years from the day of the testator's death.

2) Advance notice: Once the first phase has been done by presenting the will before the Notary, the advance notice constitutes the second phase, in which the Notary will open the will and will require all persons who have an interest in the inheritance to appear before him. If the interested persons are not found, they will go to the town hall and be published on its notice board. The Public Prosecutor's Office must also be informed if a person is found to be interested who is underage or has changed his or her legal capacity.

The appearance must be held within a maximum of 30 days from the application for the probate of the will. At the appearance, the Notary shall exhibit the will and ask the relevant questions.

3) Notarisation: If the Notary deems the identity of the will to be justified, he shall agree to have it notarised by drawing up a notarial deed.  If the identity of the will is not identified, he may refuse to notarise it.

The declaration of notoriety and the notarisation procedure must be made within five working days of the last procedure.


Does a holographic will expire?

It expires within five years from the day of death in order to carry out the operations of notarization and advising.

Contact us, and our lawyers specializing in civil law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Madrid and Reus.