Spanish Wills for Foreign Property Owners

Buying a home on the Costa del Sol usually gets the attention it deserves, but the question of what happens to that home when you die is easy to postpone. For foreign owners this is a mistake. A Spanish will is the single most effective way to spare your family a slow, expensive and stressful cross-border probate, and it is the natural place to record the one legal choice that can make the biggest difference: whether your estate is governed by Spanish law or by the law of your own country. This guide explains why a Spanish will matters for foreign property owners, how EU Regulation 650/2012 lets you choose your national law, and how the whole picture connects to Spanish inheritance tax. The rules are national and EU-wide, so they apply the same in Marbella, Estepona, Fuengirola, Mijas or anywhere along the coast.

Why foreign property owners need a Spanish will

Nothing in Spanish law forces a foreign owner to make a Spanish will. A valid will made in your home country can, in principle, be used to pass on your Spanish property. The problem is practical. To use a foreign will in Spain the document normally has to be officially translated, legalised with an apostille, and processed through the Spanish courts or notarial system, which adds months of delay and significant cost while your heirs cannot deal with the property.

A Spanish will avoids almost all of that friction. It is written in Spanish (usually as a bilingual document so you can read it), it deals only with your Spanish assets, and once you have died your heirs can move directly to the notarial deed of acceptance of inheritance. The two most common recommendations from Spanish lawyers are therefore to make a separate Spanish will limited to your Spanish estate, and to make sure it is carefully worded so that it does not accidentally revoke your home-country will (and vice versa). Keeping one will per country, each expressly limited to the assets in that country, is the safe pattern.

The standard instrument is the open will (testamento abierto), signed before a Spanish notary. The notary keeps the original, gives you an authorised copy, and reports the will to the Registro General de Actos de Ultima Voluntad, the central registry of last wills in Madrid.⁴ After a death, that registry is checked to confirm which will is the last valid one, which is why registration matters so much: an unregistered will can simply be missed.

EU Regulation 650/2012: choosing the law that governs your estate

The most important legal point for any foreign owner is which country’s succession law decides who inherits. This is governed by EU Regulation 650/2012, often called Brussels IV, which applies to the succession of everyone who dies on or after 17 August 2015.¹

The default rule is that your succession is governed by the law of the country where you were habitually resident at the time of death.¹ For a British, Irish or other foreign owner who lives in Spain, that default would be Spanish succession law. That matters, because Spanish law imposes forced heirship (the legitima): a fixed portion of the estate, broadly two thirds, must pass to your children, regardless of what you might prefer. Many foreign owners do not want that outcome.

The Regulation gives you a way out. Under it you may choose that the law of your nationality should apply to your entire succession instead of the law of your residence.¹⁵ Recording that choice (known as a professio iuris) in your Spanish will lets a national of England and Wales, Ireland, the United States or anywhere else keep the testamentary freedom of their own legal system and leave their estate as they wish, rather than being bound by the Spanish legitima.

What about British, Irish and Danish owners?

Denmark and Ireland did not opt in to the Regulation, and the United Kingdom never participated either.¹ This does not lock their nationals out of the choice of law. Because the Regulation has what lawyers call universal application, Spanish authorities apply it to any estate they deal with, and they will give effect to a valid election of the national law of a non-participating country. In practice a British national who owns a Costa del Sol property can still elect English (or Scottish, or Northern Irish) law in their Spanish will. This is a technical area, so take advice from a lawyer who handles cross-border estates before relying on it.

The European Certificate of Succession

The Regulation also created the European Certificate of Succession, a single document that lets heirs, legatees and executors prove their status and exercise their rights in another member state without further formalities.¹ It is a useful tool where an estate spans several EU countries, though for a person whose only Spanish asset is one property it is often simpler to deal with the Spanish estate through the local notarial route.

The will decides who inherits, not how much tax is paid

A point that causes constant confusion: choosing your national law under Regulation 650/2012 changes who inherits your estate, but it does not change the tax. Spanish inheritance and gift tax (the Impuesto sobre Sucesiones y Donaciones, ISD) is charged whenever Spanish-situated assets pass on death, whatever succession law applies and whatever the deceased’s nationality. So you can elect English law to keep your freedom of disposition and still find that your heirs face a Spanish ISD assessment on the Costa del Sol property. The two questions have to be planned together.

ISD is paid by each beneficiary, not by the estate, and is due within six months of the date of death (Modelo 650 for inheritances), with a possible extension if applied for in time.³ Non-residents are within the scope of the tax on their Spanish assets, and thanks to the case law of the European Court of Justice and subsequent Spanish legislation, non-residents can now apply the rules of the relevant autonomous community rather than only the harsher state rules.²³ For a Costa del Sol property that community is Andalusia.

How Andalusia treats inheritance tax

Andalusia is one of the most generous regions in Spain for family inheritances. Beneficiaries in Groups I and II (broadly children, grandchildren, spouses and parents) receive a 99% rebate (bonificacion) on the inheritance tax due, applied after a reduction of up to 1,000,000 euros per beneficiary for those groups.³ The effect is that a spouse or child inheriting a typical Costa del Sol home usually pays little or no Spanish inheritance tax at all.

The state tax scale, which still sets the framework, runs progressively from 7.65% up to 34%, with the top rate reached on taxable bases above roughly 797,555 euros, before regional reductions and rebates are applied.² The relationship between the deceased and the beneficiary is what drives the bill: distant relatives and unrelated heirs (Groups III and IV) do not get the 99% rebate and can face substantially higher effective rates, which is one more reason to plan who inherits with care.

Because the reliefs are so favourable for close family and so limited for everyone else, the identity of your heirs has a direct financial consequence. Leaving a property to a spouse or child is very different, in tax terms, from leaving it to a partner you have not married or to a friend.

Putting it together: a checklist for owners

• Make a Spanish will covering only your Spanish assets, signed before a notary and registered in the Registro General de Actos de Ultima Voluntad.⁴
• Decide, with advice, whether to elect the law of your nationality under Regulation 650/2012, and state that election clearly in the will.¹
• Keep your home-country will and your Spanish will consistent, so neither revokes the other.
• Make sure every intended heir has a Spanish NIE, which they will need to accept the inheritance and to be assessed for tax; see the related guide on obtaining an NIE.
• Plan the succession law and the inheritance tax together, remembering that choosing your national law does not reduce Spanish ISD.²
• Keep the purchase deed, IBI receipts and any mortgage details accessible, as your heirs will need them for the deed of acceptance and the tax return.

For the wider financial picture, our related guides on wealth tax in Andalusia, non-resident income tax and Modelo 210, buying costs and taxes on new-build homes, and selling as a non-resident cover the taxes you deal with while you own and when you eventually sell.

Common pitfalls

The recurring mistakes are avoidable. Relying only on a home-country will leaves your heirs to navigate translation, legalisation and a foreign probate before they can touch the Spanish property. Failing to register the Spanish will means it may never be found. Assuming the Spanish default applies, and doing nothing, can hand a fixed share of your estate to children under the legitima when you intended otherwise. And confusing succession law with succession tax leads owners to believe that choosing English law avoids Spanish inheritance tax, which it does not.

Handled properly, a Spanish will is a short, inexpensive document that removes months of difficulty for the people you leave behind and lets you keep control of who inherits your Costa del Sol home.

This guide is general information, not personal legal or tax advice. Succession law, the choice-of-law rules and inheritance tax reliefs can change, and your position depends on your nationality, your country of residence and your family circumstances. Confirm the current rules with a qualified cross-border lawyer, a Spanish notary or the Agencia Tributaria de Andalucia before acting.