For a US, UK or other non-EU owner, a Spanish will for expats is not automatically compulsory and a valid foreign will may operate in Spain. A separate Spanish will can simplify local succession only when it is carefully limited and coordinated. Decide which law governs, what passes under each document, how companies or trust-like arrangements are treated and whether any clause conflicts with planning elsewhere.
Key Takeaways
- Do not assume that every expat “needs” a Spanish will; suitability depends on assets, residence, nationality, family and existing wills.
- Spain applies the EU Succession Regulation to determine jurisdiction and applicable succession law in relevant cross-border estates.
- A person may choose the law of their nationality to govern their succession, subject to the Regulation’s conditions and careful drafting.
- A Spanish will and a foreign will can coexist, but overlapping revocation clauses can create serious conflict.
- Succession law and inheritance tax are separate questions.
- A notarial open will is a common Spanish form, but the right form depends on the circumstances.
- Coordinate succession drafting with Spanish and home-country tax advice; neither country’s will alone determines the full tax result.
Is a Spanish Will for Expats Always Needed?
There is no universal rule that a foreign national with assets in Spain must make a Spanish will. The better question is whether a Spanish document improves the administration of that particular estate without disrupting planning elsewhere.
A Spanish will may be useful where a person owns Spanish property, bank accounts or shares and wants a document drafted for use before Spanish notaries and authorities. It may reduce the amount of foreign documentation that heirs need to produce in Spain, but no responsible adviser should promise a fixed saving in time or cost: that depends on the estate, the foreign probate system and the documents available after death.
A foreign will may also be recognised and used. Formal validity is a separate question from the law governing the succession: the Hague Convention of 5 October 1961 on the Form of Testamentary Dispositions provides alternative connecting laws under which a will can be valid as to form, including the place of execution and specified nationality, domicile, habitual-residence or immovable-property connections. Article 75 of the EU Succession Regulation preserves its application to the formal validity of wills in contracting Member States such as Spain. Using a foreign will can still require proof of authenticity, legalisation or apostille where applicable, translation and evidence about the relevant foreign law. Confirm the exact route for the country and documents involved.
Which law governs a cross-border succession in Spain?
The EU Succession Regulation (Regulation (EU) No 650/2012) provides the principal framework used by Spanish authorities in relevant cross-border successions. Its rules must be separated from tax rules: the Regulation expressly does not harmonise inheritance tax.
The default rule: habitual residence
The general rule points to the law of the country where the deceased was habitually resident at death, unless the Regulation’s more specific provisions lead elsewhere. “Habitual residence” is a factual concept. It should not be reduced to nationality, a residence permit or one home address.
Choice of national law
Article 22 allows a person to choose the law of the country whose nationality they possess at the time of making the choice or at death. A person with multiple nationalities may choose the law of any of those nationalities within the Regulation’s terms.
The choice should be made expressly in a disposition of property upon death, or be demonstrated by its terms. For British, US and other nationals whose country has more than one territorial legal system, identifying the relevant internal law can require additional analysis. A generic clause copied from another person’s will is not enough.
Why the choice matters
Spain’s Civil Code contains forced-heirship rules under Spanish common civil law, as well as rules on testamentary forms, capacity and revocation. Spain also has territorial civil-law systems, so “Spanish inheritance law” is not always a single uniform answer.
A valid choice of national law can therefore materially change who has protected rights and how the estate is distributed. It does not automatically change the inheritance-tax treatment, the location of assets or the procedure needed to transfer Spanish property.
For a deeper treatment of this decision, see choosing the applicable law for an expat will in Spain.
What type of Spanish will is commonly used?
Notarial open will (testamento abierto)
The open will before a Spanish notary is a standard form used in Spain. The notary exercises a public function under the Spanish Notary Law, verifies identity and capacity within the notarial process, authorises the public instrument and retains the original in the notarial protocol.
International clients should receive a draft they understand. Where the client does not understand Spanish sufficiently, the notary and lawyer should confirm the appropriate language and interpretation arrangements for that signing. “Bilingual” drafting can aid understanding but must not create inconsistent versions.
Other testamentary forms
The Civil Code also regulates other forms, including holographic and closed wills. Their availability does not make them equally practical for every cross-border estate. Formal validity, later authentication and evidential risk should be assessed before choosing a non-notarial format.
Can a Spanish will coexist with a UK, US or other foreign will?
Yes, coordinated wills can coexist. They do not do so safely by accident.
A common structure is to limit the dispositive scope of the Spanish will—the assets its gifts cover—to identified assets in Spain while preserving a foreign will for assets elsewhere. That does not split the applicable succession law asset by asset. Under Articles 21–23 of Regulation (EU) No 650/2012, the law identified by the Regulation, including any valid choice of national law, generally governs the succession as a whole. Coordinate gifts, revocation clauses, executors or other representatives and choice-of-law clauses across every will. Whether separate wills are suitable depends on that legal framework, tax, asset ownership and the complete wording.
Before signing, advisers should check:
- Whether either will contains a clause revoking all earlier wills worldwide.
- Whether both documents dispose of the same asset.
- Whether definitions of “Spanish assets” are clear enough.
- Whether executors or representatives have conflicting authority.
- Whether a choice-of-law clause applies to the whole succession.
- Whether matrimonial-property or trust issues affect what is actually in the estate.
Do not sign a Spanish template and assume the foreign will survives unchanged. Ideally, Spanish counsel and home-country counsel should review the final structure together.
International or blended families may need additional planning; see the guide to Spanish wills for blended international families.
For US-connected clients, the coordination review may need federal and state wills, revocable trusts, beneficiary designations and estate or gift-tax advice. UK-connected clients may need their Spanish document tested against UK wills, inheritance-tax planning and the relevant connecting factors. Other non-EU clients may also face mandatory-heirship, probate, exchange-control or tax rules at home. The Spanish will should not purport to resolve those foreign questions without local advice.
High-net-worth estates should identify the legal and beneficial ownership of company shares, partnership interests, trusts or foundations before drafting gifts. A Spanish property used by the family may be owned by an entity, while the estate contains shares or another interest rather than the property itself. That distinction can change succession procedure, valuation, tax and control after death.
How to make a Spanish will
1. Map the estate and family
List assets, debts, ownership percentages, locations, beneficiaries, nationalities and countries of habitual residence. Include jointly held assets and corporate interests rather than treating the estate as one property.
2. Review existing documents
Provide all current wills, codicils, trusts, marital agreements and relevant company documents. The review should identify revocation and overlap risks before a Spanish draft is prepared.
3. Decide the governing-law strategy
Determine the likely default law and whether an express choice of national law is available and appropriate. This is a succession decision, not merely a drafting preference.
4. Draft the scope and gifts
The will should clearly identify what it covers, beneficiaries, substitutes and any representative roles. Clauses should fit the family and the applicable law rather than repeat assumptions about “freedom to leave everything to anyone.”
5. Sign using the appropriate formalities
For a notarial open will, the testator signs before the Spanish notary after the document and capacity requirements are checked. Formalities can vary with disability, language and other personal circumstances.
6. Coordinate and review
Give the relevant advisers a record of the final structure and review it after major changes in family, residence, nationality, assets or law.
Risks to address before signing
- Accidental worldwide revocation. A broad revocation clause may cancel a foreign will.
- Assuming tax follows the chosen law. The EU Regulation does not determine inheritance tax.
- Ignoring territorial law. Spanish common civil law may not be the only Spanish civil regime relevant.
- Using an imprecise nationality clause. Multi-jurisdiction countries require careful identification of the applicable law.
- Treating a will as an asset-ownership fix. A will cannot dispose of assets the testator does not own.
- Leaving documents inconsistent. Wills, trusts and matrimonial-property arrangements should tell one coherent story.
Frequently Asked Questions
Is a Spanish will for expats mandatory if I own property in Spain?
No universal rule makes a Spanish will mandatory merely because a foreigner owns Spanish property. A foreign will may operate, but a coordinated Spanish will may make local administration more practical.
Can I choose English, Scottish or US law in a Spanish will?
The EU Succession Regulation permits a choice of the law of a nationality within its conditions. For countries with several territorial systems, the precise law and drafting require analysis. Nationality alone should not be converted into a generic clause without advice.
Does choosing foreign law avoid Spanish inheritance tax?
No. Applicable succession law and inheritance tax are different. The Regulation does not harmonise tax, and Spanish tax connecting factors must be reviewed separately.
Will a Spanish will revoke my existing will?
It can if the documents are drafted inconsistently. A Spanish will may be limited and expressly coordinated with foreign wills, but all revocation clauses and overlapping gifts must be reviewed before signing.
Can I use an English-only will before a Spanish notary?
Language and interpretation arrangements depend on the notarial process and the testator’s understanding. Ask the chosen notary and lawyer to confirm the acceptable format rather than assuming an English-only or dual-column document will always be accepted.
How Mecan Legal Can Help
Mecan Legal can review your Spanish assets, family circumstances, nationality and existing foreign wills, then coordinate the scope and applicable-law wording of a Spanish will. The next step is a document review before any notarial signing is arranged.
Author
Author: Juan Diego Muñoz Espada
Sources
- Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions — BOE.
- Regulation (EU) No 650/2012 on succession, Articles 20–23, 36 and 75 — EUR-Lex.
- Spanish Civil Code — BOE.
- Spanish Notary Law — BOE.
This article provides general information about Spanish succession planning. It is not legal or tax advice. The applicable law, formalities and tax treatment depend on personal circumstances and the law in force when advice is given.