Will your English will reach your Spanish property?
Usually it will. That is not what most firms selling Spanish wills will tell you, so it is worth understanding the mechanism rather than taking anybody's word for it — including ours.
Search for advice about Spanish property and you will find a great deal of alarming material about forced heirship: the Spanish rules that reserve fixed shares of an estate to children, so that a parent cannot freely leave everything to a spouse. The usual conclusion is that you need a Spanish will urgently.
For most British owners living in Britain, that conclusion does not follow. Here is why.
The rule that actually applies
Since 2015, Spain has applied the EU Succession Regulation. Its basic rule is that your succession — the whole of it, movable and immovable, wherever the assets are — is governed by the law of the country in which you were habitually resident at the date of your death.
If you live in Kent and have a flat in Alicante, your habitual residence is in England. English law governs your succession, including the flat. England has no forced heirship. Spanish reserved shares do not reach your Spanish property.
The Regulation also lets you make a positive choice: you may elect the law of your nationality to govern your estate instead. That is the professio iuris, and it is the clause that Spanish will drafting is largely about.
So what is a Spanish will actually for?
Not validity. Your English or Scottish will is capable of governing the Spanish property already. A Spanish will buys you two other things.
Speed and cost for your heirs. This is the real argument, and it is a decent one. Without a Spanish will, your heirs must have your UK will translated by a sworn translator, apostilled, and frequently supported by a sworn statement of English or Scottish law before a Spanish notary will act on it — because a Spanish notary cannot be expected to know what an executor is or how a grant of probate operates. That is several weeks and several hundred pounds, paid by your family, at the worst possible moment. A Spanish will sits in the Spanish register and removes that entire step.
Protection against your own future. If you later retire to Spain, your habitual residence moves, and Spanish law — including forced heirship — becomes the default. A choice-of-law clause made now travels with you.
The four situations where the answer changes
The comfortable answer above assumes a straightforward picture. It stops being reliable if any of these apply.
You are spending more of the year in Spain than here. Habitual residence is a question of fact, not of paperwork, and it is decided after your death by people looking at where your life actually was. If you are drifting towards Spain, do not assume the English answer still holds.
You hold more than one nationality. Which nationality you choose, and whether you choose it expressly, changes the outcome. Holding Spanish nationality as well as British makes this urgent rather than optional.
Your will says "the law of my nationality" and stops there. This is the commonest defect we see, and it comes from perfectly competent UK drafters who have never had to put a clause in front of a Spanish notary. The United Kingdom has no single law of succession. It has three: England and Wales, Scotland, Northern Ireland. A choice that does not identify one of them is incomplete, and the argument falls to your heirs to have.
You are Scottish, or your estate has a Scottish connection. Scotland is the interesting case. It is not like England: Scots law retains legal rights, a form of forced heirship over moveable estate which a spouse and children can claim regardless of what the will says. So a Scottish testator choosing "the law of my nationality" may be choosing a system with its own reserved shares — and the interaction between Scottish legal rights and Spanish immovable property is a question that neither a Spanish notary nor most Scottish solicitors deal with often. If this is you, get it looked at properly.
What we would actually tell you
If you live in Britain, own one Spanish property, have a current UK will covering your worldwide estate, and are not planning to move: you probably do not need a Spanish will. What you may want is a properly drafted governing-law clause in the will you already have, and a note to your executors about what Spain will ask them for.
If any of the four situations above applies: get advice, and get it from someone who works with both systems rather than one.
And whatever you decide, do not accept an offer to have a Spanish will executed on your behalf under a power of attorney. Spanish law treats making a will as a strictly personal act. It cannot be delegated. A will purportedly made by an attorney would be worthless to the people it was meant to protect, and any firm offering it does not know what it is doing.
What it costs, if you do need one
£295, or £450 for a couple: we draft it, agree it with you in English, and book a notary near your property for your next trip out. You sign it yourself. If you are not travelling, we draft the governing-law wording for your own solicitor to build into your UK will instead, which is usually cheaper.
Written by ABOGADO LIMITED. General information about Spanish succession law, not advice on your own will. We advise on Spanish law only; your UK will is a matter for a UK-qualified lawyer.