One of the most common mistakes made by foreign property owners in Spain is assuming that a will signed in their home country is sufficient to deal with Spanish assets. Although a foreign will may be legally valid, relying exclusively upon it frequently creates delays, additional costs and unnecessary complications for the heirs. Succession within the European Union is largely governed by Regulation (EU) 650/2012 (the European Succession Regulation). Pursuant to Article 21, the general rule is that the law applicable to the succession is the law of the State in which the deceased had habitual residence at the time of death. Habitual residence is not determined solely by nationality, tax residence or municipal registration, but by the overall circumstances of the deceased’s life, including family, social and economic connections and the centre of vital interests.
The choice of law (professio iuris)
Article 22 of the Regulation provides the solution. A person may expressly choose, as the law governing the succession, the law of the State whose nationality he or she possesses at the time of making the choice or at the time of death. This choice of law (professio iuris) must be made expressly in a will or other disposition upon death. The importance of this choice should not be underestimated. Under the Spanish Civil Code, forced heirship provisions reserve significant portions of the estate for descendants and certain close relatives. Other jurisdictions adopt very different approaches. In England and Wales, testamentary freedom is considerably broader, while Scandinavian jurisdictions generally maintain reserved share systems which are less restrictive than the Spanish rules.
Without a properly drafted will containing an express choice of law clause, heirs may face uncertainty regarding the applicable legal system, particularly where the deceased had connections with more than one country. In practice, disputes concerning habitual residence are not uncommon in international estates.
Unity of succession and assets abroad
Article 23 of the Regulation establishes the principle of unity of succession. The applicable law governs the succession as a whole, covering all assets and liabilities of the estate. Practical complications nevertheless arise where assets are located outside the Regulation, such as in the United Kingdom, the United States or other third States, whose authorities may apply their own private international law rules, particularly in relation to immovable property situated within their territory. Article 34 additionally permits renvoi in certain situations involving third States, which further increases the importance of a properly drafted professio iuris clause. For this reason, many international families choose to sign coordinated wills in different jurisdictions. Typically, a Spanish will deals exclusively with Spanish assets, while separate wills govern assets situated abroad. The drafting must be carried out carefully in order to avoid unintended revocation clauses, as poorly coordinated wills may accidentally cancel one another.
The practical advantages of a Spanish will
A Spanish will offers several practical advantages. It is signed before a Spanish notary and recorded in the Spanish Central Registry of Last Wills. Upon death, the heirs may obtain the relevant certificates directly in Spain and proceed with the inheritance formalities using documentation already adapted to Spanish legal and administrative requirements. This substantially simplifies dealings with Spanish Land Registries, banks and public authorities. By contrast, relying exclusively on a foreign will often requires probate documentation, apostilles, sworn translations and additional formalities which significantly increase both timescales and costs.
Succession law and taxation are not the same
It is equally important to distinguish between succession law and taxation. Regulation (EU) 650/2012 governs the civil law aspects of succession, but it does not regulate inheritance tax. Spanish Inheritance and Gift Tax applies according to Spanish tax legislation and, where applicable, regional regulations. Following the judgment of the Court of Justice of the European Union of 3 September 2014, non residents may, under certain circumstances, benefit from regional tax allowances and reductions on equal terms with residents.
Conclusion
The problems most frequently encountered in practice are remarkably consistent: the absence of a Spanish will, contradictory wills signed in different countries, poorly drafted choice of law clauses, unmarried partners left without adequate protection, and heirs discovering too late that the administration of the Spanish estate could have been significantly simpler. For foreign nationals who own assets in Spain, whether resident or non resident, making a Spanish will is usually one of the simplest and most effective forms of estate planning. It provides legal certainty, reduces future administrative difficulties and helps ensure that the Spanish estate can be administered as efficiently as possible.
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