The open will is the most common way to set out a person’s final wishes in writing. It is called “open” because its contents are known at the time it is made before a notary, who certifies that it faithfully reflects the testator’s intentions. It is a solemn act that provides legal certainty and helps prevent future disputes among heirs.
Contrary to popular belief, it is neither complex nor reserved for the elderly. More and more people choose to prepare ahead of time, organise their estate and make their wishes clear. This foresight avoids misunderstandings and makes the process of settling an estate far simpler when the time comes.
What it means to make an open will
Making an open will means formally declaring how one’s estate should be distributed after death. The notary acts as a legal guarantor, drafting the document according to the testator’s wishes and ensuring that all formal requirements are met.
This type of will is called “open” because its content is not secret: the notary knows and authorises it, giving the document full legal validity. The original remains in the notary’s custody, while the testator receives an authorised copy.
Differences between an open will and a closed will
The key difference lies in confidentiality. In an open will, the notary and any witnesses are aware of the content, which provides greater legal security. In a closed will, the testator delivers a sealed document, and no one knows what it contains until their death.
While the open will offers professional advice and legal certainty from the outset, the closed will prioritises privacy, though at the risk of including imprecise or unlawful provisions. For that reason, most professionals recommend the open form.
Requirements for making an open will
Any adult of sound mind may make an open will. There are also specific provisions for emancipated minors or individuals with disabilities, provided they can clearly express their wishes.
The will is made before a notary, who verifies the testator’s identity and capacity and drafts the document in accordance with the law. In exceptional cases, such as severe illness or emergency it may be authorised outside the notary’s office with witnesses present. However, the standard practice is to do it formally before a notary to ensure its full validity.
Open will with children how inheritance is shared
When there are children, the law protects their entitlement to a minimum portion of the estate known as the “legítima.” This part represents two-thirds of the total estate, one of which must be divided equally among all descendants. The remaining third may be distributed freely, either to favour one heir or to benefit another person.
For instance, if a person has two children, half of the estate will be shared equally between them, while the remaining third can be left to one of them, to the spouse, or to someone else. This flexibility allows each family situation to be reflected fairly without infringing on the children’s rights.
Real examples of open wills
Imagine a married person with two children. Their will may provide that the spouse keeps a life interest in the family home and that, upon their passing, the children inherit full ownership. They may also include specific legacies, such as jewellery, savings, or items of sentimental value, clearly designating who receives what.
Another common case is that of someone without descendants. In such a situation, the testator may freely divide their estate among siblings, nieces and nephews, or trusted individuals. The notary will advise on the best legal arrangements to ensure the testator’s wishes are fulfilled without complications.
Last wishes and open wills
The Register of Last Wills is the official database where all notarial wills are recorded. It does not contain the text of the will but indicates the notary’s name, date, and place of execution.
After the testator’s death, the heirs must request a certificate of last wills to verify whether a will exists and before which notary it was made. Only then can they obtain an authorised copy and proceed to read and execute it.
Advantages and disadvantages of the open will
The main advantage of an open will is legal certainty. The notary ensures that the document complies with the law and that the testator’s wishes are accurately recorded. It also prevents formal errors that could invalidate the will and provides personalised advice on the best way to distribute the estate.
As for disadvantages, some may point to the lack of privacy since the notary is aware of the contents. However, this is generally seen as a positive aspect: the involvement of a professional guarantees a clear, effective, and legally sound document.
Special situations and common questions
Certain family circumstances require special attention. Cases involving second marriages, children from different relationships, or civil partnerships can create doubts about inheritance distribution. In such situations, an open will allows for precise instructions that prevent later disputes.
Another common question concerns disinheriting a child. The law allows it only under specific conditions, such as abuse or a complete breakdown of the relationship caused by the child. For this reason, professional legal advice is essential before including such a clause.
Final considerations before making an open will
Making a will should not be viewed as an act of urgency but as one of responsibility. An open will can be changed as often as desired, so it is advisable to review it periodically, especially when family or financial circumstances change.
Preparing it calmly, with professional guidance, ensures that your final wishes are honoured exactly as you intend. In the end, an open will does more than organise an estate: it provides peace of mind for those who make it and certainty for those who will inherit.
