If you own assets in Spain, a Spanish will is usually a very sensible step. It often makes administration easier and helps align the Spanish side of your estate with your wider succession planning.
Without one, your family faces a complex and expensive legal maze that can drag on for months, sometimes years. A properly drafted Spanish will ensures your assets are passed on according to your instructions, not by the default rules of Spanish law.
Why You Need a Spanish Will for Your Assets
As an expat, it's natural to think your will from back home has you covered. In our experience, this is a costly assumption. Relying only on a foreign will forces your heirs into a slow, bureaucratic probate process here in Spain.
They’ll have to get sworn translations, an Apostille of The Hague for your foreign will, and then have it all validated by a Spanish court. It’s not just the expense; it's a huge burden on your family at an already difficult time.
A dedicated Spanish will cuts right through that red tape. It specifically covers your assets in Spain, making the transfer to your heirs much more straightforward.
When considering how to manage your Spanish assets, the difference between using a local will and a foreign one is stark. Here's a quick comparison to make the choice clear.
Spanish Will vs Foreign Will for Spanish Assets
If you’re from the UK, the US, or another common law country, Spain’s forced heirship system will likely be your biggest surprise. We call it the legítima. It’s a default rule that can feel incredibly restrictive if you’re used to leaving your assets to whomever you wish.
Under the Spanish Civil Code, a large chunk of your estate is automatically reserved for specific relatives, known as “forced heirs” (herederos forzosos). You simply cannot give this portion to anyone else in your will. The system is meant to protect immediate family, but it often clashes with the plans of expats.
Who Are the Forced Heirs?
The law sets out a very clear pecking order. It’s important to know who falls into this category, as it dictates how your estate gets split if Spanish law applies.
- Children and descendants: Under the common Civil Code, they usually have the strongest reserved rights.
- Parents and ascendants: They can become relevant if there are no descendants.
- Surviving spouse: The spouse often has usufruct rights rather than a simple outright share, but the exact outcome depends on the applicable law and family structure.
This can create genuinely difficult scenarios. Say you want to leave your Spanish apartment entirely to your spouse. The legítima could force a significant share to go directly to your children—even adult children from a past marriage.
The Three Thirds Rule Explained
Think of your estate as a cake sliced into three equal pieces. This is the core of Spanish inheritance and where it diverges completely from common law.
- The Strict Legitime (Legítima Estricta): This first third is non-negotiable. It must be divided equally among your children. You have zero say in the matter.
- The Improvement Third (Tercio de Mejora): This second third also has to go to your children or their descendants, but here you have some flexibility. You can “improve” one child’s inheritance by giving them the whole third, or split it unevenly.
- The Free Disposal Third (Tercio de Libre Disposición): This is the only part you truly control. You can leave this final third to anyone—a friend, your spouse, a charity, or even give it as an extra portion to one of your children.
In practical terms, the common Civil Code can leave a much smaller freely disposable portion than many expats expect. The exact result depends on the family structure and the law that ultimately applies to the succession.
How to Regain Control of Your Estate
Luckily, as a foreigner, you aren’t stuck with these rules. The EU Succession Regulation (No 650/2012), also known as Brussels IV, is the key. It gives you the power to choose the law of your own nationality to govern your will.
By adding a properly drafted “choice of law” clause to your Spanish will, you can ask for the law of your nationality to apply to your succession. That often avoids the default Spanish forced-heirship outcome, but the clause still needs to be coordinated with your wider estate and tax planning.
This is a critical strategy we use for nearly every expat client making a will in Spain. It ensures their final wishes are respected, not overridden by Spanish default rules.
Not including this clause is one of the most frequent and costly mistakes we see. If you don’t, the law of your habitual residence at the time of death will apply. If that’s Spain, the legítima automatically takes effect, and your plans could be completely undone.
Choosing the Right Type of Spanish Will
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When it comes to making a will in Spain, you have a few options. But for nearly every expat we work with, only one really makes sense: the Open Will.
Its security, simplicity, and official registration make it the undisputed best choice. Other types of wills exist, but they often create more problems than they solve. Understanding the difference is important to protecting your heirs from a world of bureaucratic pain down the road.
The Open Will (Testamento Abierto): Usually the Most Practical Option
The Open Will, or Testamento Abierto, is the most common and secure way to formalise your wishes in Spain. It’s the only type of will we prepare for our clients, and for good reason.
You sign this will in front of a public notary after it has been drafted by a legal expert. The notary’s job is to verify your identity, confirm you are of sound mind, and make sure everything complies with Spanish law.
The original document is kept safe by the notary, but most importantly, its existence is logged in Spain’s Central Registry of Last Wills (Registro de Actos de Última Voluntad). This is the key. It means your will can never be lost, hidden, or ignored. When you pass away, your heirs simply get a certificate from the registry telling them exactly which notary holds your will. This makes the probate process straightforward and fast.
The Problematic Alternatives
While technically legal, the other types of Spanish wills are a minefield of risk, cost, and delay for the people you leave behind. We almost never recommend them.
- The Closed Will (Testamento Cerrado): You give the notary your will in a sealed envelope. They register that you’ve lodged a will, but they have no idea what it says. This creates huge problems later. The will has to go through a court process just to be opened and validated, which means long delays and expensive legal fees for your family.
- The Holographic Will (Testamento Ológrafo): This is a will you write entirely by hand, with no notary involved. It sounds easy, but it’s the riskiest path you can take. Your heirs will have to prove it’s your handwriting, get it validated by a judge within five years, and fight off any challenges. The few hundred euros saved by avoiding a notary are nothing compared to the thousands your heirs will spend in court fees.
The Open Will is the only choice that guarantees your wishes are clear, legally sound, and easy for your heirs to follow. The peace of mind is worth every cent of the professional guidance needed to create one properly.
Major life events often push people to finally sort out their estate planning. The important point is not the headline statistics; it is having a will that is drafted clearly, signed correctly before a notary, and easy for your heirs to locate later.
How Spanish Inheritance Tax Works Across Regions
Spain’s inheritance tax, the Impuesto sobre Sucesiones y Donaciones, is not one single system. It’s a patchwork of rules set by the state and the 17 autonomous communities. This is where it gets complicated for foreigners.
The tax bill your heirs face depends entirely on where your assets are. The difference isn’t small. It can be massive.
State-level tax rates start at 7.65% and climb to 34%. But that’s just the baseline. The autonomous communities can, and do, apply their own reliefs and allowances (bonificaciones). These regional rules can slash the final tax bill to almost nothing. This is why knowing the regional landscape is so important.
The Impact of Regional Tax Differences
The gap between regions is staggering. A property in one community could cost your heirs a fortune in tax, while the exact same property value in another might be tax-free.
Regional inheritance-tax reliefs can vary sharply between autonomous communities, so the final tax bill can look very different depending on where the assets are located and who the heirs are. That is why we review succession planning together with the regional tax position instead of treating the will as a standalone document.
Below is a quick comparison of the three main will types in Spain. The Open Will is, by far, the most common and secure option for expats.
As you can see, the Open Will provides legal certainty that the other types simply can’t match. It’s the right choice for almost every situation.
Rules for Non-Resident Heirs
What happens if your heirs don’t live in Spain? For years, non-residents were forced to pay the higher state-level tax, no matter where the assets were. The European Court of Justice correctly ruled this was discriminatory.
A landmark decision now lets non-resident EU/EEA citizens use the more favourable tax laws of the autonomous community where the assets are located. This was a game-changer.
This opens the door to more effective planning for non-resident heirs as well, but the outcome still depends on the region, the family relationship, and the asset structure. We review those points together before giving inheritance-tax advice.
Structuring your will with these regional tax differences in mind is not an optimisation. It’s a necessity. It’s not just about who gets what, but about how much they actually keep.
Effective estate planning requires deep knowledge of both succession and tax law. We handle this for our clients every day. To ensure your assets are structured to take advantage of the most favourable regional laws, book a consultation with our team.
How to Make a Spanish Will: A Step-by-Step Guide
Okay, let’s move from theory to action. Making a will in Spain isn’t some complex legal mystery. It’s a clear, logical process. We walk clients through these exact steps every day, making sure their wishes for their Spanish assets are locked down, legally and permanently.
Here’s the breakdown of how it works, from our first chat to the final registration.
Step 1: Initial Consultation and Document Gathering
It all starts with a conversation. We’ll talk about what you own in Spain, your family situation, and—most importantly—what you want to happen when you’re gone. From there, we’ll ask you to pull together a few key documents.
You’ll need to have these handy:
- Your NIE number (Número de Identificación de Extranjero)
- A valid passport
- Details of your Spanish assets (think property deeds, or escrituras, and bank account info)
- Full names and details for your heirs and your chosen executor
Getting this right from the start means the will we draft for you is accurate and legally solid from day one.
Step 2: The Big Decisions: Heirs and Choice of Law
This is where you make the calls that matter. You’ll formally name your beneficiaries and decide exactly who gets what. You’ll also appoint an executor, known as the albacea, who is the person responsible for making sure your instructions are followed.
A carefully drafted choice-of-law clause can be one of the most important tools in an expat will, but it still has to be reviewed against your nationality, your family situation, and the rest of your estate planning.
Forgetting this is a massive, and surprisingly common, mistake. Without that clause, Spanish law can take over, potentially sending your assets to people you never intended to inherit. We make sure this is front and centre in every will we handle for our expat clients.
Step 3: Drafting the Will
With your decisions and documents in hand, our legal team starts drafting the will. We use precise, legally sound language that leaves zero room for interpretation. Ambiguity is the enemy here; it only invites confusion and legal challenges down the road.
If your Spanish isn’t perfect, don’t worry. We prepare a bilingual will, with Spanish in one column and English (or your own language) right next to it. You’ll understand every word before you sign anything.
Step 4: The Notary Appointment (Otorgamiento)
Once you’ve approved the draft, we schedule the signing at a public notary’s office. This formal act is called the otorgamiento.
At the appointment, the notary reads the will aloud to confirm it reflects your wishes. If it’s a bilingual will, a registered translator must be there by law to translate everything, ensuring you have full comprehension. The notary then witnesses your signature, and your will officially becomes a public deed.
Step 5: Registration at the Central Registry
This final step is handled automatically by the notary. They will electronically register the existence of your will with Spain’s Central Registry of Last Will and Testaments (Registro de Actos de Última Voluntad).
The registry doesn’t keep a copy of your will. It just logs the vital facts: that you made a will, the date you made it, and which notary holds the original. This creates a foolproof central record. When the time comes, your heirs can find it with a simple search, ensuring your will can’t be lost or ignored.
This five-step process demystifies making wills in Spain. To get started securing your assets and making sure your wishes are respected, you can learn more about our wills and inheritance services. Contact us for personal advice, and we’ll guide you through every step.
Common Mistakes Expats Make with Spanish Wills
Mistake 1: Assuming Your Home Country Will Is Enough
This is, by far, the most common and costly mistake we see. Thinking your will from the UK, the US, or elsewhere will smoothly handle your Spanish assets is a recipe for disaster.
What actually happens is your heirs get dragged into a bureaucratic nightmare. They’ll face a painful probate process involving sworn translations, apostilles, and court validations that can easily stretch over a year and burn through thousands in legal fees.
The fix is simple: make a separate Spanish will. It’s a straightforward document covering only your assets in Spain. This allows your heirs to go to the notary and handle the transfer quickly and efficiently. The cost of a proper Spanish will is a tiny fraction of the legal bills for validating a foreign one.
Mistake 2: Forgetting the Choice of Law Clause
We’ve said it before, but it’s important enough to repeat. Failing to include a “choice of law” clause in your Spanish will is a huge mistake. Without it, Spanish law automatically applies to your inheritance because you are a resident.
This means your estate gets carved up according to Spain’s rigid forced heirship rules (la legítima), regardless of what your will actually says. Your wishes get overridden by the law.
Electing the law of your nationality can be extremely important, but it is not something to copy mechanically. The wording and the wider estate plan still need to be checked properly.
Mistake 3: Creating Conflicting Wills
Another headache arises when you have multiple wills that weren’t written to work together. Maybe you have an old will back home and a new one in Spain. If the Spanish will is poorly drafted, it can inadvertently cancel your original will completely, not just the part dealing with Spain.
The solution is to draft your Spanish will so it’s complementary. It must state clearly that it applies only to your assets located in Spain. This leaves your other will to manage your assets elsewhere, preventing any conflicts and ensuring a smooth process in both countries.
Mistake 4: Not Updating Your Will
A will isn’t a “set it and forget it” task. Your life changes, and your will needs to keep pace. We often see clients with wills that are years, sometimes decades, out of date.
You have to review and update your will after major life events. Things like:
- Getting married or divorced
- The birth of children or grandchildren
- The death of a person named in your will
- A major change in your financial situation
An old will can create serious family disputes and outcomes you never intended. We tell our clients to review their will every three to five years anyway, just to make sure it still reflects their wishes.
These mistakes are common, but they are also completely avoidable with the right guidance. To make sure your will is set up correctly, contact our team for personalised advice.
Do I Really Need a Spanish Will for My Spanish Property?
Legally, no. Practically, absolutely yes.
Relying solely on your home country’s will for your Spanish assets creates a nightmare for your heirs. They’ll be forced into a costly and painfully slow legal process in Spain. Think sworn translations, apostilles, and notary procedures that drag on for months and can easily cost thousands of euros.
A proper Spanish will cuts through all that. It allows for a quick and clean transfer of your property. The small upfront cost of getting a will drafted is nothing compared to the probate costs your family will face without one.
Can My Spouse and I Make a Joint Will?
No, you can’t. This is a common point of confusion for expats from countries like the UK or Germany where joint or mirror wills are standard. Spanish law is very clear: wills are strictly individual.
Each of you must make your own separate will. Even if your wishes are identical, you will each sign your own ‘Testamento Abierto’ before a Spanish notary. Of course, we can draft two separate wills that are perfectly synchronised to reflect your shared plan for your estate.
What Happens If I Die in Spain With No Will at All?
If you die without a will (intestate), the law of the country where you had your ‘habitual residence’ will kick in. If that’s Spain, your estate gets divided according to rigid Spanish succession rules.
The order is not what most foreign families expect:
- First in line are your children and their descendants.
- If you have no children, your parents or other ascendants inherit everything.
- Your spouse only inherits if there are no living children and no living parents.
This default outcome can be a brutal shock. We’ve seen cases where a surviving spouse gets nothing because the deceased’s elderly parents were still alive. On top of that, your heirs would have to go through a complex legal procedure called a ‘declaración de herederos abintestato’ just to be recognised.
Making a will is the only way to make sure your wishes are respected and your family is protected from these kinds of unintended, and often devastating, results.
Planning your estate in a new country brings up a lot of questions. For clear answers and a strategy that fits your specific family and financial situation, get in touch with our team of experts.
