Wills for Non-Residents with Assets in Spain: A Complete Guide

Every year, grieving families discover that a parent's holiday home in Marbella, a bank account in Valencia, or shares in a Spanish company cannot simply be transferred according to the home-country will sitting in a desk drawer. Instead they face unfamiliar legal procedures, competing claims from distant relatives, forced delays, and bills they did not expect. In many cases, a modest investment in cross-border estate planning — done while the testator was alive and well — would have prevented every one of these problems.

This guide is written for non-residents: people who own Spanish assets but whose centre of life and fiscal domicile is outside Spain. Whether you are a US citizen who bought a Costa del Sol villa, a British retiree who moved to Alicante, a German investor with shares in a Spanish S.L., or a UK resident with a Barcelona apartment, the principles here apply to you. Spain's succession rules are more complex than most foreign clients expect — but with the right planning they are entirely manageable.

1. Why Non-Residents Need a Spanish-Compliant Will

The most dangerous assumption in cross-border estate planning is this: "I have a will at home, so everything is sorted." It is a reasonable assumption — after all, most people think of a will as a single document that covers all of their possessions. In domestic situations that is broadly true. The moment international assets enter the picture, however, the assumption falls apart.

Spanish Assets Are Not Automatically Covered by a Foreign Will

Spanish law determines the succession of assets located in Spain. Even where a foreign will is in principle legally valid and applicable under private international law rules, the mechanics of putting that will into effect in Spain require a set of procedures that a foreign will alone cannot satisfy. A will made in New York, London, or Frankfurt must be formally authenticated, officially translated by a sworn translator (traductor jurado), and presented to a Spanish notary who must satisfy themselves that it meets the requirements for recognition in Spain. That process takes time, costs money, and — critically — can fail if the foreign will conflicts with Spanish mandatory rules.

The assets most commonly affected:

• Real estate (inmuebles): Property registered in the Spanish Registro de la Propiedad cannot be transferred without a Spanish notarial deed (escritura pública) of acceptance of inheritance. A foreign will, however valid, does not substitute for that requirement. The Spanish notary must examine the succession and issue the deed.
• Spanish bank accounts: Spanish banks will not release funds to foreign heirs on the basis of a foreign probate document alone. They require either a European Certificate of Succession (see section 2), a Spanish deed of partition of the estate, or a court order from a Spanish court — each of which requires a formal succession procedure.
• Shares in Spanish companies (S.A. or S.L.): Transfer of participaciones requires a notarial deed and registration in the company's libro de socios (share register). Again, a foreign probate document is not self-executing in Spain.
• Vehicles registered in Spain: Transfer requires Spanish administrative procedures that require proof of succession recognised under Spanish law.

Without Proper Planning: The Consequences

The practical consequences of dying without a Spain-compliant will, while holding Spanish assets, include:

• Spanish intestacy rules apply by default. Spanish intestate succession follows a rigid hierarchy: descendants first (children equally), then parents/ascendants, then the surviving spouse (who receives only a usufruct in the intestate scenario, not outright ownership), then siblings, then other relatives, and ultimately the State. If the deceased's home country has different intestacy rules — or if the deceased made arrangements in a foreign will that conflict with the Spanish hierarchy — a dispute is almost inevitable.
• Forced heirs may appear. Spanish law confers mandatory inheritance rights on certain heirs (see section 4). If a non-resident's home-country will attempts to exclude these heirs from Spanish assets, the heirs can challenge the distribution in Spanish courts and typically win.
• Probate delays of two years or more. Without a pre-registered Spanish will, heirs must gather foreign probate documents, obtain sworn translations, navigate the European Certificate of Succession system (if available) or litigate, and process everything through the Spanish notarial and land registry system. The entire process can take two years from the date of death — during which the assets are frozen.
• Inheritance tax deadlines are not suspended. Spanish ISD (Impuesto sobre Sucesiones y Donaciones) has a six-month deadline for payment from the date of death. If heirs cannot access assets because they are frozen in probate, they still face that deadline — and the interest that accrues on late payment. Extensions are available but must be applied for proactively.
• Disputes between heirs from different countries. When a deceased leaves heirs in multiple countries — children in the US from a first marriage, a European partner from a second — and has assets in several jurisdictions, the potential for conflicting claims, competing probate proceedings, and prolonged litigation is very high. Coordinated international estate planning eliminates or dramatically reduces that risk.

2. The European Succession Regulation (EU No. 650/2012)

The single most important piece of legislation for anyone planning an estate that includes assets in EU member states is Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession — universally referred to as the EU Succession Regulation or Brussels IV.

What the Regulation Does

Before the Regulation, each EU member state applied its own private international law rules to determine which country's succession law governed an international estate. A German national living in Spain might find that Spain applied Spanish law (law of the situs of assets), Germany applied German law (law of nationality), and neither was sure which prevailed. Brussels IV resolved this by establishing a single uniform rule across all participating member states.

The Regulation applies to all deaths on or after 17 August 2015. It covers EU member states except the United Kingdom, Denmark, and Ireland, which opted out. The UK's opt-out has become permanent post-Brexit. However — and this is crucial — the Regulation applies to successions that have connecting factors with non-participating states, including the United Kingdom and the United States. Spain must therefore apply Brussels IV even in estates involving UK nationals or US citizens.

The Default Rule: Habitual Residence

Article 21 of the Regulation establishes the default rule: the law of the country of habitual residence of the deceased at the time of death governs the succession as a whole. "Habitual residence" is an autonomous EU concept — it is not the same as fiscal domicile or formal registration. It reflects the place where the deceased had their centre of life: where they lived day-to-day, where they had their social connections, where they spent most of their time.

The practical consequence of the default rule is significant. If a US citizen, British national, or German national is habitually resident in Spain at the time of death:

• Spanish succession law governs the entire worldwide estate — not just the Spanish assets.
• That means Spanish forced heir rules (the legítima) apply to everything, including the Spanish property, the UK bank account, and the US brokerage account.
• Spanish courts have jurisdiction over the succession.

Conversely, if a person's habitual residence is in Germany, the UK, or the United States at the date of death, the Regulation requires Spain to apply that country's succession law to the estate — including the Spanish property — even though the property is physically located in Spain. For a US citizen whose habitual residence is New York, that means US succession law (probably New York law) governs the Spanish villa, not Spanish law.

Choice of Law Under Article 22

Article 22 of the Regulation allows a testator to elect the succession law of their nationality to govern the whole succession, overriding the default habitual residence rule. This is the most powerful planning tool Brussels IV provides, and it is underused.

The election must be made expressly in a testamentary disposition — in practice, in the will itself. The clause needs to specify the nationality and state clearly that the testator elects the law of that nationality to govern the succession. For example, a US citizen habitually resident in Spain should include in their Spanish will a clause on the lines of: "Pursuant to Article 22 of Regulation (EU) No. 650/2012, I elect the law of the United States [and specifically the law of the State of New York / California / etc.] to govern my succession."

The practical implications of a valid Article 22 election are profound:

• A US national electing US law can potentially exclude Spanish forced heir rules from applying to their entire estate — including the Spanish property.
• A British national can elect English law, which has near-complete testamentary freedom, and disinherit children or leave the estate to whomever they choose.
• A French national who prefers the flexibility of English law cannot make this election — the regulation allows election of nationality law only, not any foreign law of choice.

The European Certificate of Succession

Chapter VI of the Regulation (Articles 62–73) creates the European Certificate of Succession (ECS) — a portable EU-wide document issued in the member state where the succession is administered, which is recognised in all other member states without any further procedure. Heirs, legatees, executors, and administrators named in the ECS can use it to exercise their rights and to have assets transferred to them in any EU member state without further authentication or legalization requirements.

For non-residents whose estate is administered in their home EU country, the ECS provides a streamlined mechanism to access Spanish assets. A German heir who obtains an ECS in Germany can present it to a Spanish notary or bank and claim the Spanish assets without needing to re-litigate the succession in Spain. This can dramatically reduce the time and cost of cross-border succession compared to the pre-2015 position.

The ECS is not available for estates involving only non-EU elements — a US national whose estate is administered in New York cannot obtain one. In such cases, heirs must use the traditional apostille and sworn translation route, or obtain recognition of foreign judicial decisions under Spanish private international law rules.

Non-EU Nationals: UK and US in Particular

Post-Brexit, UK nationals are no longer EU citizens. They cannot elect the law of an EU member state under Article 22 (they do not have EU nationality). However, the Regulation still applies to their successions insofar as their estate has EU connecting factors. A UK national who is habitually resident in the UK at death will have the UK's succession law applied by Spanish courts to the Spanish assets, under the general rules on the applicable law of non-EU habitual residence (Article 20 — the universal application rule).

A UK national habitually resident in Spain at death: Spanish courts apply Spanish law by default. The UK national can elect UK law under Article 22 — because Article 22 allows election of the law of any nationality (not only EU nationality). UK law includes the law of England and Wales, Scots law, Northern Irish law — so the election should be specific.

US nationals: the analysis is similar. US law is not an EU member state law, but a US national may elect US state law (specifying the relevant state) under Article 22. Spanish courts are bound by Brussels IV and must give effect to a valid Article 22 election in favour of US law. Whether they will do so where Spanish forced heir rights over Spanish real estate are at stake remains subject to the ordre public caveat.

3. What the Will Must Achieve: Four Key Objectives

3.1 Legal Compliance and Avoiding Inheritance Disputes

A will is only useful if it is legally enforceable in each jurisdiction where it will be executed. This requires attention to two distinct issues: formal validity (is the will a valid legal document?) and substantive validity (does the will comply with the mandatory rules of the applicable succession law?).

Formal validity is governed in Spain by the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961), which Spain has ratified. Under the Hague Convention, a testamentary disposition is formally valid if it complies with the internal law of any of the following:

• The place where the testator made the disposition (lex loci actus);
• The nationality of the testator at the time of the disposition or at death;
• The domicile of the testator at the time of the disposition or at death;
• The habitual residence of the testator at the time of the disposition or at death;
• The location of the immovable property (for wills dealing with immovables).

In practice, a will made in the United States, the United Kingdom, or Germany, in compliance with the formal requirements of that country, will be formally valid in Spain under the Hague Convention. The danger is not usually formal validity — it is substantive validity: even a formally valid foreign will cannot override Spain's mandatory forced heir rules if Spanish law governs the succession.

Substantive validity is governed by the applicable succession law determined under Brussels IV. If Spanish law applies (because the testator was habitually resident in Spain and made no Article 22 election), then the will must comply with Spanish forced heir rules. A clause that purports to leave the entire estate to a surviving spouse and exclude adult children entirely is void under Spanish law to the extent it violates the children's legítima (see section 4). The notary who handles the Spanish probate will flag this, and the children can bring an acción de complemento de legítima or acción de reducción de legados to enforce their rights.

3.2 Facilitating Asset Location for Heirs

One of the most practical — and most overlooked — functions of estate planning is ensuring that heirs can actually find what the deceased owned. In an international context this is a genuine problem: assets held in Spain by a non-resident may be entirely unknown to heirs living abroad.

The Registro de Últimas Voluntades: Any will made before a Spanish notary is automatically registered in the Registro General de Actos de Última Voluntad (RGAUV), maintained by the Ministry of Justice. Within 15 business days of the date of death, any person can submit a death certificate to the RGAUV and request a certificate stating whether the deceased left any will registered in Spain, which notary holds the protocol, and the date of the latest will. This is the essential first step in any Spanish succession: heirs should apply to the RGAUV immediately. The service is available online through the Ministry of Justice website.

PACTA — European Registry of Wills: PACTA is a cross-border European registry operated under the European Network of Registers of Wills Associations (ARERT). Spanish notaries participate voluntarily. If the testator registered an international will with PACTA, heirs can search it through any participating national registry across Europe. This is particularly useful where the testator made wills in multiple countries and heirs are uncertain which is the most recent.

Locating Spanish bank accounts: The Agencia Tributaria (AEAT) collects data on bank accounts held at Spanish financial institutions through Modelo 198 (financial institutions' annual information returns). Heirs who are authorised representatives of the estate can request information from the AEAT to locate accounts. In practice, Spanish banks also accept applications from accredited heirs presenting succession documentation.

Locating Spanish property: The Catastro (Spanish Land Registry for cadastral values) holds records of all Spanish real estate. The Registro de la Propiedad (Land Registry) holds title records. Heirs can search both on the basis of the deceased's NIE (Número de Identificación de Extranjeros).

Practical tools testators can provide:

• Letter of instructions: A non-legally-binding document left with the will (or stored securely and referenced in the will) listing all Spanish assets, account numbers, the names of Spanish advisers, the location of the Registro de la Propiedad titles, vehicle registration plates, insurance policy numbers, and digital account credentials. This document should be updated regularly and its location communicated to a trusted person.
• Notarial inventory clause: A clause in the Spanish will providing a current inventory of Spanish assets, making it easier for the notary to conduct the succession without extensive investigation.
• Safe-deposit box reference: If original property titles, share certificates, or other documents are held in a Spanish bank safe-deposit box, the will should identify the bank, branch, and box number.

3.3 Respecting the Testator's Wishes: Choice of Law and Its Limits

The fundamental purpose of a will is to ensure that the testator's wishes are respected. The degree to which this is achievable depends heavily on which succession law governs the estate — different legal systems offer very different degrees of testamentary freedom.

For non-residents who are nationals of common law systems (the US, the UK, Australia, Canada), making a valid Article 22 choice of law election in favour of their home country's law is the most effective way of preserving near-complete testamentary freedom over their Spanish assets. The election must, however, navigate two constraints:

Ordre public (Article 35, Brussels IV): Spain can refuse to apply a foreign law chosen under Article 22 if the result would be manifestly contrary to Spanish public policy. The legítima is deeply embedded in Spanish legal culture, and there is a body of Spanish academic opinion suggesting that the total exclusion of legitimate descendants from Spanish immovable property violates ordre public. However, since 2015 Spanish courts and notaries have generally given effect to Article 22 elections, and the dominant view in practice is that the ordre public exception should be applied narrowly and only in extreme cases. The risk exists but should not be overstated in well-advised situations.

Limitation to nationality law: Article 22 permits election of the law of the testator's nationality only. A US citizen who prefers German law over US law cannot make that election. A dual national can elect either nationality's law.

3.4 A Will in Each Country Where Assets Exist

The practical gold standard for international estate planning is a separate, coordinated will for each jurisdiction where significant assets exist. This is not merely a convenience: it reflects a legal reality. A single home-country will that purports to cover everything must be made effective in each country separately, which takes time and creates risk. Multiple coordinated wills, each drafted to the formality standards of its jurisdiction and each dealing only with assets in that country, can be put into effect simultaneously and swiftly.

The architecture of a multi-will plan for a US national with Spanish and US assets:

• Spanish notarial will (testamento abierto): Made before a Spanish notary, covering Spanish assets specifically. Contains: (a) Article 22 choice of law election; (b) identification of the Spanish assets covered; (c) a negative clause confirming it does not revoke any foreign will; (d) appointment of an executor or administrator recognised under Spanish law. This will is automatically registered in the RGAUV the day it is executed.
• US will (or revocable living trust): Covering US assets. Updated to include a clause stating it does not revoke the Spanish will. In many US states, a revocable living trust (RLT) is preferable to a will for assets that can be placed in trust, as it avoids probate entirely. The RLT cannot hold the Spanish real estate directly (foreign real estate is typically not a suitable trust asset without careful analysis) but can hold US assets and coordinate with the Spanish will.
• Other jurisdiction wills: If the testator also has assets in the UK, France, Germany, or elsewhere, a separate will for each is advisable with the same negative clause architecture.

4. Forced Heirs in Spain: The Legítima

Spanish forced heirship — the legítima — is one of the most significant constraints on testamentary freedom in Spanish law and one of the most frequently misunderstood features of the system by non-resident clients. The rules are codified in Articles 806–808 of the Spanish Civil Code (Código Civil — CC), which apply in the common civil law territory of Spain (with modifications in the foral territories of the Basque Country, Navarra, Aragón, Catalonia, the Balearic Islands, and Galicia).

Structure of the Legítima Under the Common Civil Code

The Spanish Civil Code divides an estate into three thirds for purposes of analysing the legítima:

• Tercio de legítima estricta (strict legítima third): This must pass to descendants in equal shares. It cannot be allocated in favour of one child over another, and it cannot be given to non-descendants. If the testator has three children and an estate of €900,000, each child has a strict legítima claim of €100,000. This right is enforceable regardless of what the will says — a child who receives less than their strict legítima share can bring an action to supplement their inheritance (acción de complemento de legítima) or to reduce bequests (acción de reducción).
• Tercio de mejora (improvement third): This must also pass to descendants, but the testator may distribute it unequally — favouring one child over another, or excluding some descendants entirely. The mejora can even be given to grandchildren skipping the children. This provides meaningful flexibility within the overall forced heirship framework: a testator who wishes to treat children differently (for example, because one child has provided care, or one is financially vulnerable) can do so through the mejora.
• Tercio de libre disposición (free disposition third): This can be left to anyone — a surviving partner, a charity, a friend, or a child to the exclusion of others. It represents the only portion of the Spanish estate over which the testator has complete freedom.

Combining the first two thirds: descendants collectively receive a minimum of two-thirds of the estate (one-third strictly and equally, one-third to descendants as the testator directs). Only one-third is fully free. This is a dramatically narrower range of freedom than US or English law provides.

Where There Are No Descendants: Ascendants

Article 809 CC: if the testator has no surviving descendants, parents (and other ascendants) become forced heirs. The ascendants' legítima is one-half of the estate if no descendants survive. This rule is often forgotten in international planning — a testator without children who assumes complete testamentary freedom may still have parents or grandparents with enforceable claims under Spanish law.

The Surviving Spouse's Rights

The surviving spouse's position under Spanish law is unusual by common law standards: the spouse does not receive ownership of any part of the estate as of right. Instead, the spouse receives a usufruct (the right to use and enjoy the property without owning it):

• If descendants exist: Usufruct of one-third (specifically, the tercio de mejora).
• If no descendants but parents/ascendants exist: Usufruct of one-half of the estate.
• If neither descendants nor ascendants: Usufruct of two-thirds of the estate.

For common law clients, this is a significant cultural and legal shock. In the US or UK, leaving everything to a surviving spouse is the standard testamentary arrangement. Under Spanish law, if there are also children, those children have an immediate enforceable claim to two-thirds of the estate in full ownership, with the spouse receiving only a usufruct over a portion. The children and the surviving spouse must then navigate the practical question of how to divide and use a property that is partly owned and partly subject to usufruct — often leading to conflict.

Application of the Legítima to Non-Residents

When does the legítima apply to a non-resident's estate? The answer depends on which succession law governs:

• If Spanish law governs (because the testator was habitually resident in Spain and made no Article 22 election, or the election was invalid or not made), the full legítima regime applies to all assets including Spanish real estate.
• If a foreign law is elected under Article 22 and that foreign law has no equivalent forced heirship regime (e.g., English law, New York law), the legítima does not apply — subject to the ordre public caveat for Spanish immovables.
• For foral territories (Catalonia, the Basque Country, Navarra, Aragón, Balearic Islands, Galicia): each has its own succession law with different — sometimes more generous — forced heirship rules. A person habitually resident in Catalonia is subject to Catalan succession law, not the national Civil Code, even without making any election. Catalan legítima is only one-quarter of the estate (divided equally among descendants), which is more testator-friendly than the national rules.

UK nationals post-Brexit must pay particular attention. They are not EU nationals and their succession law has no forced heirship for children. Under Brussels IV, Spain must still give effect to a UK national's election of UK law under Article 22. However, for assets in foral territories, local succession law may have primacy over the national Civil Code, adding a further layer of complexity.

5. Inheritance Tax (ISD) Planning for Non-Residents

Effective estate planning for non-residents with Spanish assets cannot ignore Impuesto sobre Sucesiones y Donaciones (ISD) — Spanish inheritance and gift tax. ISD is charged on the value of assets received by the heirs, not on the estate as a whole, and each heir's position is calculated individually based on their relationship to the deceased and the value they receive.

Who Pays and When

Heirs of a non-resident who receive Spanish assets are subject to Spanish ISD on the value of those assets, under the obligación real (real obligation) — the same concept that applies to wealth tax for non-residents. The deadline for paying ISD is six months from the date of death, extendable by a further six months if a prorogation request is submitted within the first five months.

The failure to pay ISD within the deadline triggers late-payment interest (currently 4.0625% per annum) and, if the AEAT discovers the omission before voluntary payment, a penalty. The interaction with the probate timeline is important: heirs may not be able to complete the inheritance procedures within six months if the estate is complex, but ISD deadlines run regardless.

Post-2018 Rules: EU Residents Can Apply Autonomous Community Reductions

Before 2018, non-residents inheriting Spanish assets were subject to the national ISD rules, which were generally less favourable than the rules of autonomous communities (which typically offered substantial reductions and bonuses for close relatives). Spanish residents, by contrast, benefited from their community's rules — which in Madrid, for instance, included a 99% reduction for direct family inheritance.

Following the Supreme Court's 2018 judgment implementing the European Court of Justice's principles from the Arens-Sikken and Bloc cases (which found that denying EU/EEA non-residents access to more favourable regional rules was incompatible with the free movement of capital), EU and EEA non-residents are now entitled to apply the autonomous community rules applicable to the region where their largest Spanish asset is located. This change significantly reduced ISD exposure for EU non-residents inheriting Spanish property.

However, several important distinctions remain:

• Non-EU nationals (US citizens, UK nationals post-Brexit, Swiss nationals) are not directly protected by EU free movement principles, and their access to autonomous community reductions depends on whether Spain has extended equal treatment by domestic law (which is evolving and varies by community).
• The Comunidad de Madrid's near-total ISD bonus for direct relatives (parents, children, spouses) is extremely favourable and effectively eliminates ISD for most close-family inheritances of Madrid-located assets. Other communities offer more modest reductions.
• The 2018 reform addressed ISD but not Impuesto sobre el Patrimonio — the wealth tax discrimination issue for non-residents remains partially unresolved (see the companion guide on wealth tax).

US-Spain: No Inheritance Tax Treaty

There is no inheritance or estate tax treaty between the United States and Spain. This creates a potential double taxation problem for US-person heirs (or for US-person testators whose estate is subject to US federal estate tax as well as Spanish ISD). The US federal estate tax applies to the worldwide estate of US citizens and domiciliaries; Spanish ISD applies to Spanish assets inherited by anyone. Without a treaty, the same Spanish asset can bear both taxes.

The US Foreign Tax Credit mechanism does not straightforwardly apply to relieve ISD against US estate tax, because ISD is levied on the heir (not the estate) while US estate tax is an estate-level charge. Careful planning is required — including the possible use of lifetime gifts (which can shift assets out of the estate tax base, though they may attract Spanish ISD on the gift), trust structures, and other arrangements — to manage the double exposure.

Lifetime Gifts Versus Death Transfers

Spanish ISD covers both inheritances (at death) and gifts (inter vivos). The rate structure and available reductions differ between gifts and inheritances, and autonomous communities have varying rules on gift tax versus inheritance tax. In general, lifetime gifts of Spanish property to children attract ISD at the time of the gift, but may do so at a lower effective rate in communities that offer gift tax bonuses. The property's acquisition value for capital gains tax purposes (IRPF for residents, IRNR for non-residents) also resets on gift in some circumstances, which can produce a combined gift-tax-plus-CGT charge that is higher than the inheritance route.

The analysis of whether to gift now or transfer at death is highly fact-specific and must account for: the applicable autonomous community's rules on gift versus inheritance; the difference between the current market value and the original acquisition value (which determines IRNR exposure on a sale); the testator's life expectancy and health; the number of heirs; and the availability of any mortgage debt that could reduce the taxable base. This analysis should be done with both a Spanish abogado and, for US persons, a US tax adviser familiar with cross-border estate planning.

6. Practical Steps: Creating a Spain-Proof Estate Plan

The following eight-step framework brings together the legal concepts discussed above into a practical planning process. Each step should ideally be completed with the guidance of a Spanish abogado and (where relevant) legal advisers in any other jurisdiction where significant assets exist.

1. Take a complete inventory of all Spanish assets List every Spanish asset: real property (address, Catastro reference, title deed reference in the Registro de la Propiedad), bank accounts (bank name, account number, approximate balance), shares or participaciones in Spanish companies (company name, CIF, number of shares/participaciones, any shareholders' agreement that may affect transferability), vehicles registered in Spain, life insurance policies with Spanish insurers, and any other asset with a Spanish connecting factor. Note the ownership structure of each asset — sole owner, joint owner, held through a company — as this affects which assets are in scope.
2. Confirm residency status and applicable succession law Determine your habitual residence under Brussels IV as a factual matter. Note that fiscal residency and habitual residence are related but not identical concepts. If you spend more than 183 days per year in Spain, maintain your home there, and have your primary social and professional connections there, you are likely habitually resident in Spain — even if you retain a fiscal domicile address elsewhere. Establish the baseline: if you die today with no further steps taken, which law governs your estate and what is the default outcome for your heirs?
3. Decide whether to make an Article 22 choice of law election If your nationality's succession law provides more favourable testamentary freedom than Spanish law, making a valid Article 22 election in your Spanish will is likely appropriate. Assess: (a) does your home country's law have forced heirship? (b) if not, what is the ordre public risk for Spanish immovable property? (c) are your potential forced heirs likely to challenge the election? (d) is your family situation such that honouring the legítima would actually accord with your wishes, making the election academic? If you are a US citizen with adult children you wish to provide for equally, the legítima may produce roughly the outcome you want — removing the need for a complex election. If you wish to leave everything to a partner who is not your spouse, the election is essential.
4. Draft a Spanish notarial will (testamento abierto) covering Spanish assets Engage a Spanish notary and an abogado specialising in international succession. The Spanish will (testamento abierto — an open will, as opposed to the rarely-used holographic or sealed will) is executed before the notary who reads it aloud, witnesses it, and retains the protocol. The will is immediately registered in the Registro General de Actos de Última Voluntad. The will should: (a) identify all Spanish assets; (b) include the Article 22 election if appropriate; (c) specify the beneficiaries and the shares; (d) appoint an executor (albacea) or administrator with authority to act in Spain; (e) include a negative clause stating it does not revoke any foreign wills; (f) address the legítima explicitly, either respecting it or relying on the Article 22 election to exclude it.
5. Draft or update the home-country will with a negative clause Instruct your home-country solicitor/attorney to update your existing will to: (a) explicitly exclude any Spanish assets from its scope ("this will covers my assets in [country] and does not extend to any assets situated in Spain"); (b) add a negative revocation clause ("this will does not revoke any testamentary instrument I have made or may make in Spain or any other country outside [home country]"); (c) reference the Spanish will and the Article 22 election if made. Ensure both wills are consistent in their identification of beneficiaries for respective assets — an inconsistency (for example, one will naming child A and the other naming child B as primary beneficiary of the same asset) will require resolution and can delay the succession.
6. Create a letter of instructions for heirs Prepare a letter of instructions (not a legally binding document — keep it separate from the will) addressed to your heirs and executor that includes: location of all wills (including the Spanish notary's name and address); details of all Spanish assets (property addresses and Catastro references, Registro de la Propiedad inscription references, bank account details, company shareholding details); the names and contact details of your Spanish abogado, Spanish notary, Spanish tax adviser, NIE number, and any Spanish gestor; the location of important documents (property deeds, share certificates, insurance policies); Spanish bank account access credentials; digital asset credentials (cryptocurrency wallet addresses and storage location of private keys — see Special Situations, section 7); vehicle registration documents. Keep this letter updated and ensure at least one trusted person knows where it is held. Do not store it with your will inside a safe-deposit box — if access to the box requires a court order in the event of death, the letter will not be available when it is most needed.
7. Ensure proper will registration The Spanish notarial will is automatically registered in the RGAUV. For international wills, consider registering with PACTA through the notary. Confirm with your home-country lawyer that your home-country will is registered in any available domestic registry. In the UK, the National Will Register (Certainty) is a voluntary registry. In the US, there is no federal will registry, but some attorneys recommend filing the will in probate court during the testator's lifetime in jurisdictions that permit this.
8. Review the plan every three to five years or on major life changes Estate plans go stale. Spanish law changes, European case law develops, family circumstances evolve (births, deaths, marriages, divorces, changes in the testator's residence pattern), and asset values fluctuate. Review the plan on the following triggers: any change in habitual residence; the birth or death of a potential heir; marriage or divorce; acquisition or disposal of significant Spanish assets; major legislative changes in Spanish succession or tax law; and in any event every three to five years as routine maintenance.

7. Special Situations

Non-EU Nationals: US, UK Post-Brexit, Swiss

Non-EU nationals occupy a distinct position under Brussels IV. They can make an Article 22 choice of law election in favour of their nationality's law (a US citizen can elect US state law; a UK national can elect English/Scots law; a Swiss national can elect Swiss law). Spain's obligation to give effect to that election derives from Article 20 (the universal application principle), which provides that the Regulation applies to all successions with an EU connecting factor — not only to successions involving EU nationals.

The practical difference for non-EU nationals is that they cannot obtain a European Certificate of Succession (which is only issued by member state authorities). Their heirs must use traditional apostille and sworn translation procedures or seek recognition of foreign succession orders under Spanish private international law. This adds cost and delay compared to an EU-national's estate.

UK nationals post-Brexit deserve particular attention. Until 31 December 2020, UK nationals were EU citizens and had full ECS rights and full access to the Regulation's protection. Post-Brexit, they are third-country nationals. Their elections under Article 22 remain valid, but they cannot use the ECS. Families with mixed UK/EU nationality should plan carefully to ensure the ECS mechanism is available where possible — for example, if an EU-national executor is appointed with authority to obtain an ECS.

Unmarried Partners

Under Spanish law, an unmarried partner has no automatic succession rights whatsoever. This is one of the most critical planning points for modern families. A long-term partner who has shared a home in Spain with the deceased for twenty years, but was never married and never formally registered as a pareja de hecho (registered civil partnership), has no right to inherit under Spanish intestacy rules. The entire Spanish estate passes to the deceased's blood relatives — potentially distant relatives whom neither the deceased nor the partner has ever met.

The solutions:

• A Spanish will explicitly naming the partner as beneficiary. This is the most direct and flexible solution. The will must, of course, respect the legítima of any descendants (the partner can only receive the tercio de libre disposición if there are children, unless an Article 22 election eliminates the legítima).
• Registration as pareja de hecho: In some Spanish autonomous communities, registered civil partnerships confer succession rights similar to those of a spouse. Catalonia, for example, gives registered partners very similar succession rights to spouses. The national Civil Code does not, however, treat registered partners equally to spouses for succession purposes. The community where the couple lives determines whether registration helps.
• Joint property ownership: Where a property is jointly owned, the survivor owns 50% already. A will can give them the right to acquire the other 50% or grant them a usufruct over it. This does not solve the problem for assets held solely by the deceased, but it protects the home.

Blended Families and Step-Children

Step-children have no forced heir rights under Spanish law unless they have been legally adopted. This is frequently surprising to clients from the US or UK, where step-children may have moral (if not legal) claims and where testamentary freedom allows equal treatment regardless of legal relationship. In Spain, a step-child who has lived with the deceased for decades, been raised by them, and been treated in every practical way as a child, has no enforceable legítima claim unless adoption took place.

The corollary is also important: the deceased's biological children from a previous relationship retain their full legítima rights regardless of the existence of a step-family. A testator who is in a second marriage and wishes to benefit a new partner and new step-children, while the biological children from the first marriage have little contact, cannot simply redirect the estate. The biological children can enforce their legítima claims. Planning in blended families is particularly important and may require the use of the mejora to favour certain descendants, lifetime gifts, insurance structures, or (where the Article 22 election is valid) a common law approach that excludes the legítima entirely.

Spanish Nationals Living Abroad

The reverse scenario — a Spanish national who has emigrated and holds most assets outside Spain — also deserves mention. Under Brussels IV, if a Spanish national is habitually resident in Germany at death, German succession law governs by default. German law (Pflichtteil system) applies to the whole estate. However, the Spanish national can elect Spanish law under Article 22. Depending on their family situation and the composition of the estate, this election may or may not be advantageous. A Spanish national who has built up significant non-Spanish wealth and has no descendants might prefer the habitual residence default (German law) which may offer greater testamentary freedom in their specific situation. This requires individual analysis.

Digital Assets

The estate planning implications of digital assets are rapidly growing in importance. For non-residents with Spanish assets, relevant digital assets may include:

• Cryptocurrency holdings: Bitcoin, Ethereum, and other cryptocurrencies held in self-custody wallets or on exchange platforms. Self-custody wallets are only accessible with the private key — if the testator dies without communicating the private key to anyone, the assets are permanently inaccessible. Exchange-held cryptocurrency requires the heirs to go through the exchange's succession procedure, which varies by platform and jurisdiction.
• Online brokerage accounts: Non-resident investment accounts (Revolut Securities, Interactive Brokers, etc.) that may hold Spanish or non-Spanish assets. These are not necessarily identifiable from land registry or bank records.
• Tokenised real estate or Spanish company shares: Where Spanish assets are represented by digital tokens or smart contracts, succession procedures may require new legal analysis.

For digital assets, the letter of instructions is the primary practical tool. The testator should record: which exchange platforms they use; the email addresses and verification methods associated with each account; the location of hardware wallets or cold storage devices; and — most critically — the location and security arrangement for private keys (ideally stored in a way that trusted persons can access post-death without the keys being exposed to theft during the testator's lifetime, such as a sealed envelope in a safe-deposit box with a trusted person named as a joint holder, or a multi-signature arrangement).

8. Frequently Asked Questions