Spanish Will vs UK Will: What Expats with Property in Spain Need to Know

As an expat owning property in Spain, the question of whether to make a Spanish will, or rely on your existing UK or home country will, is more than just a matter of convenience; it’s a crucial decision that can profoundly impact your loved ones and the swift, efficient transfer of your assets. At Bufete Padilla, we frequently encounter clients grappling with this very dilemma. This comprehensive guide aims to demystify the complexities and empower you to make an informed choice.

Why a Spanish Will Speeds Up Inheritance

One of the most compelling reasons to execute a Spanish will for your Spanish assets is efficiency. When a non-resident property owner in Spain passes away without a Spanish will, their UK or home country will must be formally recognised and validated under Spanish law. This often involves:

* Lengthy Legalisation and Apostille Processes: Your foreign will will need to be notarised, legalised (often requiring an Apostille stamp under the Hague Convention), and officially translated into Spanish by a sworn translator (Traductor Jurado).
* Formal Recognition by Spanish Courts: Even with proper legalisation, the foreign will must then be formally recognised by a Spanish Notary or, in complex cases, by a Spanish court. This can be a protracted and expensive procedure, requiring expert legal interpretation of foreign inheritance law.
* Potential for Delays and Increased Costs: Each step adds time, legal fees, and administrative burdens, significantly delaying the inheritance process and increasing the overall costs for your beneficiaries.

A Spanish will, drafted and executed according to Spanish law, circumvents these hurdles. It is immediately recognised by Spanish authorities, streamlining the process and allowing your beneficiaries to access their inheritance much faster.

Risks of Conflicting Wills (Revocation Clauses)

Many expats consider having two wills: one for their home country assets and one for their Spanish assets. While this can be an effective strategy, it carries a significant risk if not handled meticulously: conflicting wills, particularly concerning revocation clauses.

* General Revocation Clauses: Most standard wills contain a clause that revokes all previous wills ("I hereby revoke all former wills and testamentary dispositions made by me"). If you draft a new UK will after creating a Spanish will, and the UK will contains such a general revocation clause, it could unintentionally revoke your Spanish will for your Spanish property. This would leave your Spanish assets intestate (without a valid will), leading to the very delays and complexities you hoped to avoid.
* Specific Revocation Clauses (or Lack Thereof): Conversely, if your Spanish will contains a general revocation clause, it could revoke your UK will, potentially causing issues with your non-Spanish assets.

The Solution: It is paramount that any two wills you make expressly state their scope and avoid general revocation clauses that could cause unintended consequences. Your Spanish will should clearly state that it only disposes of your assets in Spain and does not revoke any previous will made for assets outside of Spain. Similarly, your UK or home country will should confirm it does not revoke your Spanish will and only deals with assets outside of Spain. Professional legal advice in both jurisdictions is essential to ensure proper coordination.

EU Succession Regulation (Regulation (EU) No 650/2012) and Choosing Applicable Law

For UK expats (prior to Brexit) and residents of other EU member states, the EU Succession Regulation, often known as "Brussels IV," introduced a significant change in succession law from August 17, 2015.

* General Rule: Brussels IV dictates that the law governing the entirety of an expat's succession will be the law of the country where they had their "habitual residence" at the time of death. This means that if you, for example, lived permanently in Spain, Spanish inheritance law would automatically apply to all your worldwide assets, unless you chose otherwise.
* Choice of Law: Crucially, Brussels IV allows you to choose the law of your nationality to govern your entire succession. This choice must be made expressly in a will or a declaration. For a UK national, this means you can choose for UK law to apply to your Spanish property. For an Irish national, you can choose Irish law, and so on.