Making a will in Spain as a foreign resident

Moving to Spain is a dream come true for thousands of expats who seek the sun, the lifestyle, and the rich culture. However, settling down in a new country also means navigating its legal system, and one of the most critical—yet frequently overlooked—aspects of estate planning is securing your assets. If you own property, hold bank accounts, or reside permanently in Spain, understanding how Spanish inheritance law works is vital. Failing to plan can leave your heirs facing unexpected taxes, lengthy bureaucratic delays, and legal rules that might conflict with your actual wishes. This comprehensive guide will walk you through everything you need to know about making a will in Spain as a foreign resident, ensuring your estate is protected and your loved ones are spared unnecessary stress.

Why Foreign Residents in Spain Need a Spanish Will

Many expats assume that a will made in their home country is sufficient to cover their Spanish assets. While a foreign will can technically be legally valid in Spain, the practical reality of executing it is a bureaucratic nightmare.

To use a foreign will in Spain, your heirs must have it translated into Spanish by an official sworn translator (traductor jurado), obtain the Apostille of the Hague Convention to prove its international validity, and sometimes secure a certificate of law from a foreign notary explaining how the succession works in your home country. This process is expensive, time-consuming, and must be completed within strict Spanish deadlines.

By drafting a Spanish will (testamento) specifically for your Spanish assets, you ensure a swift, cost-effective, and straightforward transfer of your estate. A Spanish will coexists peacefully with your foreign will; it simply governs your assets located in Spain, while your foreign will governs your assets back home.

The Legal Framework: EU Regulation 650/2012 and the Spanish Civil Code

Understanding which law governs your estate is the most crucial step in Spanish estate planning. This is governed by a combination of European law and the Spanish Civil Code (Código Civil).

The Power of EU Regulation 650/2012 (Brussels IV)

Since 17 August 2015, European Union Regulation No. 650/2012 (commonly known as "Brussels IV") has governed inheritance matters for expats living in participating EU countries.

Under this regulation, the default law applied to your estate upon your death is the law of the country where you had your habitual residence at the time of death.

• The Default Rule: If you are a British, American, or German expat living permanently in Spain, and you die without making a will, Spanish law will govern the distribution of all your assets.
• The Exception (Professio Juris): The regulation allows you to explicitly choose, in your will, that the law of your nationality should govern your estate instead of Spanish law. This choice of law must be expressly stated in your Spanish will.

This distinction is vital because Spanish inheritance law is vastly different from Anglo-Saxon common law systems.

Spanish Forced Heirship (Legítimas)

Unlike the UK or the USA, where you generally enjoy testamentary freedom (the right to leave your assets to whomever you wish), Spain operates under a system of "forced heirship" (legítimas).

Under Article 806 of the Spanish Civil Code, you cannot freely disinherit your natural heirs. The estate is divided into three equal parts:

1. *The Third of the Legitimacy (Tercio de Legítima): This 1/3* of the estate must go strictly to your forced heirs (usually children or descendants) in equal parts.
2. *The Third of Improvement (Tercio de Mejora): This 1/3* must also go to children or descendants, but you can choose to favor one child over another.
3. *The Third of Free Disposal (Tercio de Libre Disposición): This is the only 1/3* of your estate that you can freely bequeath to anyone you choose (such as a friend, a charity, or a partner).

If you do not want your estate carved up this way, you must write a Spanish will and invoke Brussels IV, choosing the law of your nationality to govern your estate. This allows you to bypass the legítimas and distribute your Spanish assets according to your home country's rules of testamentary freedom.

Inheritance Tax in Spain: Regional Differences

In Spain, Inheritance and Gift Tax (Impuesto sobre Sucesiones y Donaciones or ISD) is a national tax, but the authority to regulate it has been devolved to the 17 Autonomous Communities (Comunidades Autónomas). This creates a highly fragmented tax landscape.

National vs. Regional Allowances

While the national state tax rate ranges from 7.65% to 34% (and can go up to 81.6% for distant relatives or unrelated beneficiaries with pre-existing wealth), regional governments have established massive allowances and bonuses.

• Andalusia, Madrid, and the Valencian Community: These popular expat regions offer a 99% tax rebate on inheritance tax for Group I (children under 21) and Group II (spouses, registered civil partners, and children over 21) heirs. This means close family members pay virtually no inheritance tax.
• Catalonia: Offers a sliding scale of allowances, which, while generous, are not as absolute as the 99% exemption found in Madrid or Andalusia.
• Other Regions: Some regions offer much lower tax thresholds, meaning your heirs could face substantial tax bills depending on where your Spanish property is located.

The Strict 6-Month Deadline

Under Spanish tax law, your heirs have a strict deadline of 6 months from the date of your death to declare and pay inheritance tax.

If they miss this deadline, they can face financial penalties starting at 5% and rising to 20%, plus late-payment interest. An extension of an additional 6 months can be requested, but this request must be submitted within the first 5 months of the date of death.

Practical Examples of Estate Distribution

To understand how these laws interact, let us look at two concrete examples of expats living in Spain.

Example 1: Sarah, a British National in Malaga

Sarah is a retired British widow living in Malaga (Andalusia). She owns a villa worth €350,000 and has €50,000 in a Spanish bank account. She has two children from whom she is estranged, and she wants to leave her entire estate to her favorite animal charity.

• Scenario A (No Will): Sarah dies without making a Spanish will. Under Brussels IV, Spanish law applies because her habitual residence was Malaga. Spanish forced heirship rules kick in. Her estranged children are legally entitled to 2/3 of her estate (€266,666). The charity can only receive the remaining 1/3 of free disposal.
• Scenario B (With a Spanish Will): Sarah makes a Spanish will before a notary. In the will, she explicitly states that she wishes her estate to be governed by the laws of England and Wales (her nationality) and leaves everything to the charity. Upon her death, her wishes are fully respected. The charity receives 100% of her Spanish assets, and her estranged children receive nothing.

Example 2: Jean and Marie, French Nationals in Alicante

Jean and Marie are a married French couple living in Alicante. They own an apartment worth €200,000 held in joint names (50% each). They have no children. Jean passes away.

• The Process: Marie must register Jean's death and accept the inheritance of his 50% share of the property (€100,000).
• The Tax: Because Alicante is in the Valencian Community, Marie benefits from the regional 99% inheritance tax rebate for spouses. After applying her personal allowance, her tax liability is virtually €0. However, she must still file the inheritance tax return within the 6-month deadline to update the property registry (Registro de la Propiedad) into her sole name.

Step-by-Step Guide to Making a Will in Spain

Writing a Spanish will is a highly structured, formal process. Here are the 4 practical steps you must take:

Step 1: Draft the Will with a Legal Professional

Do not use a generic online template. Hire an independent Spanish lawyer (abogado) who understands cross-border estate planning. They will draft the will in a double-column format (Spanish on one side, English on the other) to ensure you understand exactly what you are signing. Your lawyer will ensure the crucial clause invoking your national law (Brussels IV) is correctly drafted.

Step 2: Book an Appointment with a Spanish Notary

In Spain, the most common and secure type of will is the Open Will (Testamento Abierto). This must be signed in the presence of a Spanish Public Notary (Notario). The notary does not give you legal advice on how to distribute your assets; their job is to verify your identity, confirm your mental capacity, and ensure the document meets all formal legal requirements.

Step 3: Sign the Will at the Notary's Office

You will attend the notary's office with your passport and your Foreigner's Identity Number (Número de Identidad de Extranjero or NIE). If you do not speak fluent Spanish, you must be accompanied by an official translator or a bilingual lawyer who will translate the notary's readings. You, the translator, and the notary will sign the original document.

Step 4: Registration in the Central Registry

Once signed, the notary keeps the original will in their archives (protocolo) and gives you a simple copy (copia simple). The notary then electronically registers the existence of your will with the Registry of Last Wills (Registro General de Actos de Última Voluntad) in Madrid. This registry does not keep a copy of the content of your will; it simply records your name, passport number, the date of the will, and the notary who holds the original. This ensures that when you die, your heirs can easily locate your latest valid will.

Common Mistakes to Avoid

• Failing to mention your national law: If you do not explicitly state in your Spanish will that you want the law of your nationality to govern your estate, Spanish law (and its strict forced heirship rules) will apply by default.
• Assuming joint bank accounts automatically transfer to the survivor: In Spain, if a bank account is held jointly by two people and one dies, the bank will freeze 50% of the account balance until inheritance tax is cleared and the probate process is complete.
• Forgetting to update your will after life changes: If you get divorced, remarry, have more children, or move to a different Spanish region with different tax laws, you must review and update your Spanish will.
• Not telling your heirs where the copy of your will is: While the central registry in Madrid keeps a record of the will, your heirs will save weeks of bureaucratic searching if they have a copy of the deed or at least know which notary office holds the original.

Frequently Asked Questions (FAQs)

Can I have a will in my home country and a separate one in Spain?

Yes. In fact, this is highly recommended. You can have a "worldwide" will in your home country that excludes your Spanish assets, and a Spanish will that deals exclusively with your assets located in Spain. It is vital that both wills are drafted carefully so that they do not accidentally revoke or contradict each other.

What happens if I die in Spain without a will?

If you die intestate (without a will) in Spain, your estate will be distributed according to the default rules of the Spanish Civil Code or the regional law of your habitual residence. This means your assets will automatically go to your children, spouse, or parents in a strict order of preference. The process for your heirs to claim your assets will also be much more expensive and time-consuming, requiring a court declaration of heirs (declaración de herederos).

Do stepchildren have the same inheritance tax allowances as biological children?

Generally, no. Under national Spanish law, stepchildren are considered Group III or Group IV heirs (strangers), meaning they have very low tax-free allowances and face much higher tax rates than biological or adopted children. However, some autonomous regions have updated their local laws to grant stepchildren the same tax benefits as biological children. It is essential to check the specific rules of your region.

How much does it cost to make a Spanish will?

Making a standard open will before a notary is surprisingly inexpensive. The notary fees are regulated by law and typically range between €50 and €100. However, this does not include the fees of a professional lawyer to advise you, draft the double-column document, and coordinate with the notary, which can range from €200 to €500 depending on the complexity of your estate.

Does a Spanish will cover my assets located outside of Spain?

No. While you can theoretically write a Spanish will to cover your global assets, it is highly impractical. Foreign registries, banks, and tax authorities will struggle to process a Spanish probate document. It is always best to have a Spanish will for your Spanish assets and a separate foreign will for your assets in your home country.

In Summary

• Choose your national law: You must explicitly state in your Spanish will that you wish the law of your nationality to govern your estate to avoid Spanish forced heirship rules.
• Regional taxes matter: Inheritance tax rules and exemptions vary dramatically depending on the Spanish region where your assets are located.
• Strict timelines: Your heirs have only 6 months from the date of your death to file and pay Spanish inheritance tax before penalties apply.
• Notary registration is mandatory: A Spanish will must be signed before a Spanish notary and registered with the Registry of Last Wills in Madrid to be fully effective.
• Keep it separate: Maintain a Spanish will for your Spanish assets and a separate home-country will for your domestic assets to ensure smooth estate administration.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.