Open and Closed Wills: Differences and Similarities

Testamento Abierto y Cerrado: Diferencias y Similitudes

By: Sergio Corrales.

In the legal field, a will represents the power of a person to establish the destination of his or her assets, rights and obligations after his or her death. This legal act, according to our legislation, is defined as the disposition that a person makes of his or her assets to take effect after death, while maintaining the possibility of modifying it during his or her lifetime. There are two forms recognized by law for making a will: the common will and the special will. Among the special wills are the military, maritime and those made in foreign countries, while the common will can be open or closed.

The common will is one that can be granted under normal conditions, allowing any person to express his or her will on the distribution of his or her assets after his or her death. Within this category are the open will and the closed will. In the former, the testator declares his last will in the presence of a notary and three witnesses, while in the latter, he presents to the notary and five witnesses a sealed envelope in which he declares that his will is contained.

Both forms of will require the intervention of a notary public, the presence of witnesses and the identification of the testator, as well as the evaluation of his or her mental capacity. The main difference between the two lies in the privacy of the closed will and the number of witnesses required for its opening.

In the event that a person dies without leaving a valid will or without having designated specific beneficiaries for his or her assets and property, what is known as intestate succession is activated. This legal process refers to the administration and distribution of the deceased’s estate as established by law. The order of priority is: if the deceased has left children, the inheritance corresponds to them in equal shares, without prejudice to the marital portion that corresponds to the surviving spouse or cohabitant. If the deceased has left no descendants or ascendants, he/she will be succeeded by his/her siblings, surviving spouse or cohabitant. The inheritance will be divided in two equal parts, one for the siblings and the other for the surviving spouse or cohabitant. If there is no surviving spouse or cohabitant, the inheritance corresponds entirely to the siblings.

In the absence of descendants, ascendants, siblings and surviving spouse or cohabitant, the other collaterals will succeed the deceased. In the absence of all the heirs ab intestato, designated in the preceding articles, the municipalities will succeed.

It is essential to keep in mind that the laws and procedures related to intestate succession may vary from one country to another, so it is advisable to seek specific legal advice in Nicaragua to fully understand the rights and responsibilities in this process.