If you own a property in Spain but live in the UK, you may already have a will covering your assets. This naturally raises an important question: can your UK will also cover your property in Spain?
The short answer is that a UK will can potentially deal with Spanish property, but the position is more complicated than simply assuming that a will made in the UK will automatically determine what happens to your Spanish assets.
Cross-border inheritance involves the laws of the country where you live, your nationality, the location of your assets and the wording of your will. For this reason, it is important to consider your Spanish property as part of your wider estate planning.
Does a UK Will Apply to Property in Spain?
A will made in the UK does not automatically become irrelevant simply because you own property in Spain. However, Spanish authorities will need to establish which law governs the succession and whether the will is valid and can be used in relation to the Spanish assets.
Spain applies the EU Succession Regulation to international successions. As a general rule, the law of the deceased person’s habitual residence can determine the succession. However, the Regulation also allows a person to choose the law of their nationality to govern their succession, provided that the choice is made appropriately.
This is particularly relevant for British nationals who own property in Spain.
The position following Brexit also means that UK and Spanish succession law cannot simply be treated as though both countries operate under the same system. The UK did not participate in the EU Succession Regulation, while Spain does.
Can You Choose UK Law for Your Spanish Property?
In certain circumstances, a British national can make an express choice for the law of their nationality to govern their succession.
For example, an English national may make an appropriate choice for the law of England and Wales to govern their succession. The choice needs to be clearly expressed in the relevant testamentary arrangements rather than assumed simply because the will was prepared in England.
The EU Succession Regulation provides that a person can choose the law of the country of which they are a national to govern their succession as a whole.
This is one reason why the wording of a will can be particularly important when you have assets in more than one country.
It is also worth remembering that there is no single legal system called “UK law”. England and Wales, Scotland and Northern Ireland have their own legal systems. The appropriate advice will therefore depend on your circumstances and the jurisdiction in which your will was made.
What If Your Will Does Not Mention Your Spanish Property?
It is not necessarily the case that your Spanish property will be excluded from your estate simply because the will does not list the property by its Spanish address.
However, the absence of clear provisions can create uncertainty when the estate has to be dealt with in Spain.
Spanish authorities may need to see the original will, evidence of its validity, translations and other documentation before the inheritance can be dealt with. Depending on the circumstances, the beneficiaries may also need to complete a Spanish probate procedure.
This is particularly important where the deceased owned a Spanish property but was resident in the UK.
Jorge Iguacel Spanish Lawyers regularly assists UK clients with Spanish probate, including cases involving Spanish property and wills made in England.
Should You Have a Spanish Will as Well?
Some people with assets in Spain choose to make a Spanish will dealing with their Spanish assets. Others may have a UK will that has been properly prepared to take their Spanish assets into account.
There is no universal answer that is appropriate for everyone.
The important issue is that your wills should work together rather than unintentionally contradict one another.
If you have both a UK will and a Spanish will, particular care is needed over the wording. A later will can potentially affect an earlier will, depending on how it has been drafted.
This is why simply downloading a standard Spanish will or making a second will without specialist advice may not be appropriate.
The aim should be to ensure that your estate planning reflects your wishes while avoiding unnecessary complications for your beneficiaries.
What Happens to a Spanish Property When You Die?
When a UK resident who owns property in Spain dies, the beneficiaries will generally need to deal with the Spanish side of the inheritance before the property can be transferred into their names or sold.
The exact procedure will depend on the circumstances of the estate, including:
- Whether there is a valid will
- Where the deceased was habitually resident
- The deceased’s nationality
- The wording of the will
- Who the beneficiaries are
- Whether there are other assets in Spain
- Whether there are outstanding Spanish taxes or debts
- Whether the property was owned jointly
The Spanish probate process can involve obtaining the necessary documentation, arranging official translations and dealing with a Spanish notary and the relevant authorities.
For UK beneficiaries, this can be difficult to manage without someone familiar with both the Spanish legal process and the requirements facing clients in the UK.
What About Spanish Inheritance Tax?
A will determines how an estate is dealt with from a succession perspective, but it does not remove potential tax obligations.
Spanish inheritance tax may need to be considered when a Spanish property is inherited. Other taxes or charges can also become relevant depending on the property and the circumstances of the inheritance.
Tax treatment can depend on factors including the location of the property, the deceased’s circumstances and the relationship between the deceased and the beneficiary.
For this reason, inheritance planning should consider both the legal and tax implications rather than looking at the will in isolation.
What Should UK Owners of Spanish Property Do?
If you live in the UK and own a property in Spain, it is worth reviewing your will and considering whether your Spanish assets have been properly accounted for.
This is particularly important if:
- You bought your Spanish property many years ago
- Your family circumstances have changed
- You have moved between the UK and Spain
- You have made or changed a will since buying the property
- You have assets in both countries
- You have inherited Spanish property
- You have more than one will
A properly considered estate plan can make it easier for your beneficiaries to deal with your Spanish assets when the time comes.
How Jorge Iguacel Spanish Lawyers Can Help
Jorge Iguacel Spanish Lawyers assists clients throughout the UK with Spanish legal matters, including Spanish wills and Spanish probate.
If you own property in Spain and want to understand how your existing will applies to your Spanish assets, specialist advice can help clarify the position and identify any issues that need to be addressed.
Where a death has already occurred, Jorge Iguacel can also assist with the Spanish probate process, including the documentation and legal formalities required to deal with Spanish property and other Spanish assets.
Planning ahead can make the eventual administration of an estate considerably more straightforward for your family.
If you own property in Spain and are unsure whether your existing will provides the protection you expect, contact Jorge Iguacel Spanish Lawyers for advice on your individual circumstances.
Please note: This article provides general information and should not be treated as legal advice. The law relating to cross-border succession can be complex, and the appropriate arrangements will depend on your individual circumstances.
