Cross-border inheritance may appear when a British national owns property in Spain, lives in the United Kingdom or Spain, and has made a will in one or both countries. When the estate is administered, these circumstances raise several distinct legal questions: which law governs the succession, what effect the wills have, who is entitled to the estate, and which documents are required to transfer assets situated in Spain.
The existence of a Spanish will does not, by itself, mean that Spanish succession law applies. Equally, British nationality does not automatically establish that the succession is governed by the law of England and Wales. The answer depends on the deceased’s circumstances, the terms of the testamentary dispositions and the applicable private international law rules.
1. Determining the law applicable to the succession
For deaths occurring on or after 17 August 2015, Regulation (EU) No 650/2012 provides the principal framework for determining the law applicable to international successions in Spain.
Under Article 21, the general rule is that the succession as a whole is governed by the law of the State in which the deceased had their habitual residence at the time of death. Habitual residence must be assessed in light of all the relevant circumstances; it should not be inferred solely from nationality, ownership of a property or an address appearing in a will. The Regulation also provides for an exceptional rule where the deceased was manifestly more closely connected with another State.
Article 22 allows a person to choose the law of a State of which they are a national, either when making the choice or at death, to govern their succession as a whole. That choice must be expressed in a disposition of property upon death or demonstrated by its terms.
The Regulation has universal application in matters of applicable law. Accordingly, a Spanish authority may have to apply the law of a non-EU State, including the relevant law of the United Kingdom.
The United Kingdom has several territorial legal systems. Where the law of the United Kingdom is designated, it is necessary to establish which territorial system is applicable rather than treating “British law” and “English law” as interchangeable expressions.
2. What does a Spanish Will achieve?
A Spanish notarial will can be a useful instrument for planning and administering an estate containing Spanish assets. It may provide a readily identifiable testamentary document for use before a Spanish notary and clarify the intended disposition of those assets.
However, three questions must be kept separate:
- Formal validity: Whether the will was executed in a form recognised under the applicable rules.
- Applicable succession law: Which law governs matters such as the beneficiaries’ entitlements and any restrictions on testamentary freedom.
- Scope and effect: Which assets the will covers and how it interacts with any other testamentary dispositions.
Executing a will before a Spanish notary does not, without more, constitute a choice of Spanish succession law. Conversely, a Spanish will made by a British national may contain a valid choice of the law of their nationality, provided the requirements of the Succession Regulation are satisfied.
The wording of the will must therefore be examined carefully. A reference to nationality, residence or a particular legal system should not automatically be treated as a valid choice of law without considering the instrument as a whole and the relevant legal framework.
3. Coordinating Spanish and UK wills
In cross-border inheritance matters, some British nationals make a Spanish will dealing with their Spanish assets and retain another will for assets elsewhere. This arrangement may be appropriate in particular circumstances, but it requires careful drafting and coordination.
A later will may contain a general revocation clause capable of affecting an earlier disposition. Conversely, a will limited to assets in one country may leave questions about the administration of the estate as a whole.
Where more than one will exists, the analysis should establish their chronological order, scope, revocation provisions and intended interaction. It should also consider whether the applicable succession law has been validly chosen and whether the dispositions can operate consistently under that law.
A will limited to Spanish assets should not be confused with a choice of succession law limited to those assets: Article 22 of the Regulation concerns the law governing the succession as a whole.
4. Forced heirship and testamentary freedom
The applicable succession law determines whether mandatory succession rights restrict the deceased’s freedom to dispose of the estate.
If the relevant Spanish succession law applies, the rights of protected heirs must be considered. If the applicable law is that of England and Wales, the analysis may differ substantially.
It is nevertheless inaccurate to describe every British succession as governed by English testamentary freedom. The applicable territorial legal system must first be identified, and the consequences of that law assessed in the particular case.
The location of a property in Spain does not, by itself, make Spanish forced-heirship rules applicable to the succession. The law governing succession must first be determined under the relevant conflict-of-law rules.
5. Is a UK grant of probate required to inherit property in Spain?
This question cannot be answered solely by asking whether the deceased was British or whether the estate includes Spanish property.
A Grant of Probate performs a particular function within the relevant UK system of estate administration. Its necessity in a Spanish inheritance must be considered in light of the testamentary title, the law governing the succession, the role of any executor or personal representative, and the documents required to establish entitlement before the Spanish notary and Land Registry.
The Spanish Directorate-General for Legal Security and Public Faith (DGSJFP) has considered this issue in several decisions:
5.a) The DGSJFP Resolution of 1st October 2020
In its Resolution of 1 October 2020 (BOE-A-2020-12823), the DGSJFP considered a succession governed by the law of England and Wales in which the deceased had executed a Spanish notarial will extending to the whole estate, with a choice of the law of their nationality.
The Directorate-General held that, in the circumstances examined, obtaining a UK Grant of Probate (or proving that one could not be obtained) was not necessary for the Spanish succession formalities at issue. It upheld the appeal against the Land Registrar’s refusal to register the inheritance.
The decision is significant, but it does not establish that a Grant of Probate is unnecessary in every British succession involving Spanish property.
5. b) The DGSJFP Resolution of 29th April 2024: An important distinction
The limits of that approach are illustrated by the Resolution of 29 April 2024 (BOE-A-2024-9883), concerning an inheritance submitted to the Land Registry in Marbella.
In that case, the deceased had executed a testamentary document in London concerning assets in Spain. The Directorate-General did not accept that the asserted choice of law had been sufficiently established and distinguished the documentation presented from the Spanish notarial wills considered in its earlier decisions.
The appeal was dismissed and the registrar’s objections were upheld. The decision illustrates why the nature and scope of the testamentary instrument, the applicable law and the evidence required to establish succession rights must be examined together.
The practical conclusion is not that probate is always required or always dispensable. The documentation needed in Spain depends on the legal basis and circumstances of the particular succession.
Key takeaways: In cross-border inheritance involving Spain:
- Lex rei sitae applies to Spanish real estate
- Spanish notarial deeds may be sufficient for registry purposes
- Foreign probate may be unnecessary if no assets exist in the foreign jurisdiction
- Foreign legal instruments may be adapted under Spanish private international law
This ensures legal certainty and avoids unnecessary duplication of probate proceedings.
6. Transferring and registering inherited property in Spain
Determining the law governing succession does not resolve every question involved in transferring a Spanish property.
The applicable succession law governs matters within the scope of Article 23 of Regulation (EU) No 650/2012. Separate rules govern the nature of rights in rem and the requirements for recording rights in a property register. The Regulation expressly excludes those matters from its scope.
Accordingly, once entitlement under the applicable succession law has been established, the inheritance must be documented in a form suitable for the relevant Spanish notarial and registration procedures. Depending on the case, foreign documents may require authentication, translation or further evidence of their legal effect.
The fact that Spanish law governs the registration of a Spanish property should not be mistaken for a rule that Spanish substantive succession law necessarily governs its inheritance.
7. Inheritance Tax is a separate legal question
Regulation (EU) No 650/2012 does not determine inheritance tax liability.
Cross-border inheritance may give rise to Spanish tax obligations even where the succession is governed by foreign law, particularly when the estate includes assets situated in Spain.The tax position requires a separate assessment of the deceased’s and beneficiaries’ circumstances, the location and nature of the assets, and the applicable Spanish and, where relevant, foreign tax rules.
For this reason, the choice of succession law should not be presented as a means of choosing the tax regime. Succession planning and tax considerations need to be coordinated, but they answer different legal questions.
8. Legal advice and assistance with international inheritances in Spain
For British nationals with assets in Spain, effective estate planning to cover their cross-border inheritance case should include:
- Coordinated wills (UK and Spain if necessary)
- Express choice of applicable law under EU rules
- Analysis of forced heirship exposure
- Review of asset location and tax residency
- Alignment between succession planning and property structure
For this reasons, this kind of cross-border inheritance in Spain requires an individual assessment of the deceased’s habitual residence and nationality, the relevant testamentary documents, the applicable succession law and the legal position of the beneficiaries.
I advise Spanish and international clients on inheritance matters involving assets situated in Spain. My work includes examining wills and other relevant documentation, assessing the succession law applicable to the case, advising beneficiaries on their legal position, and assisting with the Spanish legal formalities required to administer and transfer inherited assets.
Where a succession involves testamentary documents or estate-administration procedures in more than one country, I consider their implications for the Spanish inheritance and identify any additional documentation or advice that may be required in the other jurisdiction.
Clients deal directly with me throughout their matter. I provide legal advice and communicate professionally in Spanish, English and French.
This article provides general legal information. The applicable law, succession rights and documentary requirements must be assessed in the circumstances of each estate.
