Spanish will (testamento) for foreign property owners

Why a Spanish will speeds up inheritance

When a foreign property owner dies without a Spanish will, the heirs face a long bureaucratic chain: get a death certificate from the home country, apostille it, sworn-translate it, find the foreign will (or court-determined heirs), apostille and translate it, then present everything to a Spanish notary who issues a declaration of heirs.

With a Spanish will, the chain is shorter: heirs obtain the certificate of the Registro General de Actos de Última Voluntad, which shows the notary holding the will, and present the will with the apostilled death certificate. Fewer foreign documents to apostille and translate means less time and fewer fees.

A Spanish will does NOT replace your foreign will — it complements it. Best practice: have a foreign will covering all worldwide assets EXCEPT Spanish ones, and a Spanish will covering ONLY Spanish assets. Both must cross-reference each other to avoid revoking the other unintentionally.

EU Succession Regulation 650/2012 — the game changer

Since 17 August 2015, the EU Succession Regulation 650/2012 lets you choose which country's succession law applies to your estate via a clause called 'professio iuris'. Without this clause, the default rule is: succession is governed by the law of your habitual residence at death.

For a UK national living in London but owning a Spanish flat: default → the law of England and Wales, but English law refers real estate to the law of where it sits, which can bring Spanish law, and its forced heirship, back into play (art. 34 of the Regulation). A professio iuris electing English law in your Spanish will avoids that, because a chosen law is applied without that referral.

For a Spanish-resident foreigner (e.g. retired Brit living in Marbella): default → Spanish succession law applies, including forced heirship rules. Professio iuris electing their nationality's law overrides this — useful if you want to disinherit a child or leave everything to spouse (impossible under Spanish forced heirship).

Ireland and Denmark are not bound by the Regulation, and neither was the UK before it left the EU. But Spain and the other participating countries apply it to everyone, including nationals of those countries who own property there. In practice: a UK national with Spanish property CAN elect English law via professio iuris in their Spanish will.

Spanish forced heirship (legítima)

Spanish common-law (Código Civil) imposes 'legítima' — a mandatory share for descendants. The estate is divided into thirds: legítima estricta (1/3 equal among children — cannot be touched), mejora (1/3 among descendants — distribution flexible), libre disposición (1/3 — disposed freely).

A surviving spouse has a 'usufructo' (right to use, not own) on part of the estate. Parents have rights if no descendants exist.

This is very different from common-law systems (UK, US, Ireland) where testators have full freedom. For non-Spanish nationals, the professio iuris election in a Spanish will lets you bypass legítima entirely by applying your nationality's law.

Some Spanish autonomous regions have their own civil law (foral): Catalonia, Aragón, Navarra, País Vasco, Balearic Islands, Galicia. Their inheritance rules differ from the common-law system. If your Spanish property is in one of these regions, check the local rules.