Making a Will in Spain as a Foreigner: When to Consider It and What to Review

Buying a home in Spain also raises a question about the future: what will happen to it when you die, and what formalities will your family have to complete.

If you hold assets in several countries, have already made a will abroad or are considering moving your residence to Spain, it is worth reviewing how these circumstances fit into your succession planning.

A will made in Spain can be a useful tool, but it should be prepared taking into account your family situation, the applicable law and the documents that already exist.

At MH Legal & Seguros we explain what you should consider before making a will in Spain as a foreigner.

Do you need a will in Spain if you own a property?

Holding a property in Spain does not, by itself, mean that you must grant a separate Spanish will. A will made in another country may take effect in Spain if it meets the applicable requirements.

It is worth checking, however, whether that document deals properly with your assets, expresses your wishes clearly and can be used in a future succession with international elements.

That is why the first question should not simply be whether you need another will, but whether your current planning reflects your assets and your family circumstances.

When to review your succession planning

It is particularly advisable to do so if:

• You have bought, or are about to buy, a home in Spain.
• You hold assets in several countries.
• You have moved to Spain or are preparing a move.
• You have married, divorced or have a new partner.
• You have children from different relationships.
• One or more wills already exist.
• You want to protect your spouse’s or partner’s use of the home.
• The people you wish to benefit have changed.

This review identifies which decisions you need to take before drafting a new document.

Which law applies to a foreigner’s estate in Spain

Nationality and the location of the assets are not, on their own, sufficient to determine the succession law.

Under the European Succession Regulation, the general rule is that the law of the State of the deceased’s habitual residence at the time of death applies, subject to the exceptions set out in the Regulation itself.

It is also possible to choose the law of a nationality you hold when making the choice or at the time of death. If you hold more than one nationality, you may choose the law of any of them within the terms permitted by the rules.

The choice concerns the succession as a whole. It does not allow you to select a different law freely for each property or each country.

For example, a German national who moves to Spain should review whether to choose their national law expressly and what consequences that decision would have for their family.

Signing a will before a Spanish notary does not, by itself, mean that the whole estate will be governed by Spanish law.

How to coordinate a Spanish will with a foreign one

If you already have a will, provide it before another is prepared. You should also disclose any joint succession documents, agreements or other provisions that may affect your planning.

The review should clarify:

• Which assets and rights each document covers.
• Whether a choice of law has been made.
• Who the beneficiaries are.
• Which provisions are to be kept or replaced.
• How amendments and revocations are dealt with.

It is not advisable to add a general clause revoking all earlier wills without checking its consequences.

If a will limited to certain assets located in Spain is considered, its scope must be coordinated carefully with the rest of the planning. Separating documents is not the same as freely dividing the law applicable to the succession.

What to review to protect your spouse, partner and children

Before deciding how your assets should be distributed, it is worth defining what you want to achieve.

You may wish your partner to be able to keep using the home, your children to receive particular assets, or a solution to exist if a beneficiary dies before you.

Whether these arrangements are possible depends on the applicable law and on the rights that must be respected. Forced heirship shares (legítimas), spousal rights and the position of an unmarried partner may differ between legal systems.

Ownership of the home and the matrimonial property regime must also be reviewed. Before distributing an estate, a distinction has to be drawn between what belonged to the deceased and what belongs to someone else.

What information to prepare before going to the notary

For an initial review, it is useful to gather:

• Your identity document or passport and, if you have one, your NIE.
• Your nationalities and country of habitual residence.
• Your marital status and matrimonial property regime.
• Information on your children and other relevant relatives.
• Copies of earlier wills and succession documents.
• An indicative list of your assets and the countries where they are located.
• Your preferences on beneficiaries and distribution.

This list is used to prepare the advice. It does not mean that every will must include a detailed inventory of assets: the Consejo General del Notariado explains that such an inventory is not, as a general rule, required in order to grant one.

In a notarial open will (testamento abierto notarial), the notary records the testator’s wishes, advises on their legal suitability and keeps the original.

The will and taxation must be reviewed separately

Choosing a succession law does not, by itself, determine the taxes the heirs will pay.

The European rules on the law applicable to succession do not regulate inheritance taxation. Nor do they resolve questions such as the matrimonial property regime on their own.

It is therefore worth coordinating the civil-law planning with a tax review of the countries involved, without assuming that choosing the law of your nationality removes tax obligations in Spain.

Frequently asked questions about wills in Spain for foreigners

Can I make a will in Spain if I already have one in my own country?

It may be possible, but the existing document must be reviewed and the scope of the new one coordinated. The aim is for the provisions to reflect a coherent intention and to avoid contradictions or unintended revocations.

Can a foreign will be valid in Spain?

Yes. It may take effect in Spain if it meets the applicable requirements. Reviewing it must distinguish the validity of the document from the formalities needed to use it.

Can I choose the law of my nationality?

The European Regulation allows you to choose the law of a nationality you hold when making the choice or at the time of death. That decision should be expressed clearly and its effects analysed before it is included in the will.

Can I change my will later?

A Spanish will is essentially revocable. If you wish to amend it, how to do so and what effect it will have on earlier documents must be reviewed, particularly where provisions have been granted in other countries.

Does making a will transfer ownership of my home now?

No. A will contains provisions that take effect after death. Granting it does not prevent you from continuing to deal with your assets during your lifetime.

Organise your assets in Spain with your family in mind

Useful succession planning starts from your circumstances: where you live, which assets you hold, whom you want as beneficiaries and which documents you have signed.

Reviewing these questions when buying a home or moving to Spain allows you to prepare your decisions in good time and leave clearer instructions for your family.

At MH Legal & Seguros we advise international clients on inheritances and wills involving assets in Spain. We review their situation, help them define their objectives and coordinate the preparation of the will with the notary and, where necessary, with professionals in other countries.

Contact our team to review your succession planning in Spain.