A will is a unilateral, personal and revocable legal document, by which a person (called testator) expresses his last will regarding the distribution of his wealth and other wishes for the moment he will no longer be alive. Therefore, by will you can designate your heirs, that is, the people who receive your goods (houses, land, savings, valuables, etc.) after death. Also, in the will you can include provisions regarding the organization of funerals, the care of the people or animals that depend on you, the appointment of a testamentary executor (a trusted person to ensure that your last desires are fulfilled) or even the recognition of a child.
It is important to remember that the will is revocable. As long as you are alive, you can change or cancel it at any time if you change your mind, so that it always reflects your current will.
Main types of wills
The Romanian legislation recognizes several forms of will, adapted to the different situations. Under normal conditions, the ordinary will can be of two types: holographic or authentic (notarial). In addition, in exceptional situations, privileged wills can be prepared, valid only for periods or in limited conditions.
Holographic will
Holographic will It is fully drafted by the handmade by the testator, dated and signed by the holograph (that is, by his hand). The law expressly requires integral writing, dating and signature of the testator, these being validity conditions, under the sanction of absolute nullity. The holographic will does not require the presence of a notary or witnesses when it is written, and its major advantage is that it can be prepared anywhere and anytime, at no cost.
The holographic will also have important disadvantages. First of all, precisely because it is written without specialized help, there is a high risk of containing legal mistakes or unclear formulations, which can lead to wrong interpretations or even to cancel some clauses. Also, a hand -written document can be more easily challenged. In practice, holographic wills present a higher risk of subsequent disputes, precisely because of possible ambiguities.
Authentic (notarial) will
The authentic will is the one prepared and authenticated by a public notary (or by another authority with competence, such as a consul, under special conditions provided by law). The procedure is more formal, but also much safer from a legal point of view. Basically, at the notary, the testator expresses his provisions (tells the notary who wants to write in the will), and the notary deals with the actual drafting of the document, making sure that all the legal requirements are respected. After writing, the will is read the testator (or is handed to read it alone) and the necessary corrections are made, then the document is signed by the testator and authenticated by the notary.
The testament authenticated by the notary is considered the safest and solid type of testament. This is why:
- First, the notary verifies the identity and capacity of the testator, so there are no doubts about the person who left the provisions;
- The notary uses exact legal terms and ensures that the will of the testator is expressed clearly and unequivocally;
- An authentic will enjoys the probative force of an authentic act, which in simple terms means that it is difficult to challenge later;
- After signing, a copy of the authentic will remains archived at the notarial office (or, as the case may be, at the Chamber of Notaries) for an indefinite period;
- The authentic form makes it possible for people who do not know how to write or read, or who because of an infirmity cannot sign, make a will.
The only disadvantage of the notarial will could be the cost, given that the notary's service involves a fee. But this cost is relatively low compared to the benefits offered.
Privileged wills (in exceptional situations)
There are also privileged wills, used only in special situations, urgently or when ordinary conditions cannot be met. The law provides for some limiting cases in which a person can write a privileged form, valid in the short term, when he does not have access to a notary. Here are some examples of extraordinary situations:
- calamities, epidemics, wars or other emergency situations: if you are in such an exceptional circumstance in which life is endangered and you cannot reach the notary, the law allows you to make your will in front of a competent official of the local civil authority (for example, a representative of the local administration, City Hall);
- Military on the front or persons employed in the armed forces: if you are a military in a mission (or even a civilian employed in the army) in an area where you do not have a notary, you can do the will in front of the commander of the military unit or its replacement;
- Seriously ill people, isolated in hospitals: if you are admitted to a health institution in which the notary public cannot arrive for quarantine, isolation or distance reasons, for example, you can draw up a will in front of the hospital director, the chief doctor of the institution or the guard doctor.
In all the above situations, the will is written (the written form is mandatory here) and must be signed by the testator, and the law requires the presence of two witnesses to assist. However, the privileged will has a temporary character, being valid only during the exceptional condition and another 15 days after it has ceased.
The role of notary in the preparation of a safe and legal will
Although you can choose to write your own will, the role of the notary public in the inheritance planning process is an essential one for the safety and validity of the act. The preparation of the will in authentic form to the notary is recommended precisely because of the numerous benefits it brings:
- The notary guarantees the testator's identity and his ability to order;
- The notary helps to clearly establish the will (through clarifying questions and the exact legal formulation of the clauses);
- The notary prevents the inclusion of ineffective or impossible clauses;
- The authentic notarial act has increased probative force, being much harder to challenge later.
In addition to keeping a copy in its archive (where it cannot be destroyed or hidden by anyone), the notary will register the will in a national electronic register of liberalities. At the death of the testator, the heirs (or any notary notified for the opening of the succession) can easily check in this register if there is a will leave and what notary is stored.
Last but not least, public notaries have experience in succession – see more information here – And I can give you valuable advice. They can explain to you what the succession reserve means, how you can still favor someone without breaking the law, how to formulate a disposition to be clear or what effects could have certain choices.
Consulting a notary, you make sure that your will is not only valid, but also optimal for your family and heritage situation.
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