11 Sep 2025 4:58 PM:
Spanish Wills vs. Your Home-Country Will: I’ll Explain the Differences (Tell Me Where Your Will Is From)
By María –Lawyer and long-time EOS member ;)
Many expats assume that a will made in their home country will “just work” in Spain. Sometimes it does—often it doesn’t, or it does so slowly and expensively. The big reason is that Spanish inheritance rules, formalities, and procedures are not the same as those in the UK, the US, Ireland, Canada, etc.
This post gives you the essentials and invites you to tell me which country your will is from so I can explain the key differences for your specific case in plain English.
Why expats should care
If you own a home or any assets in Spain, a Spanish-compatible plan can:
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Avoid delays for your heirs (months can become weeks).
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Reduce costs (fewer translations/apostilles, simpler steps).
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Prevent conflicts between different legal systems.
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Respect your wishes (forced heirship vs. freedom of testation).
Core concepts (the short version)
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Forced heirship vs. freedom to choose
Spain has forced heirship rules (la legítima). However, under the EU Succession Regulation (650/2012) most foreign nationals can choose their national law in a Spanish will (e.g., England & Wales, Scotland, a US State law). This often restores the freedom you are used to at home.
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Form matters
In Spain, the standard is an open notarial will—signed before a notary and recorded (so it can’t “go missing”). UK/US wills are usually private documents with witnesses and no mandatory central registry.
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Administration
With a Spanish notarial will, heirs sign a notarial deed of acceptance and move forward. Without one, heirs must gather foreign probate documents, get them apostilled and translated, and sometimes obtain a declaration of heirs—all of which adds time and cost.
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Taxes differ
Spain has Inheritance Tax, but rates and allowances vary by Autonomous Community. The UK has IHT at 40% above its thresholds; the US has a high federal threshold plus possible State taxes. Cross-border planning matters to avoid double counting.
Typical differences by country (high-level)
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England & Wales
Broad freedom of testation (no automatic children’s share). Probate is standard. A separate Spanish will limited to Spanish assets usually speeds up the Spain side. Include a choice-of-law clause (your national law) in the Spanish will.
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Scotland
Has “legal rights” for spouses/children over moveable estate. A Spanish will with a choice of Scottish law can be crafted; coordination is key so the Scottish and Spanish documents don’t contradict each other.
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United States (varies by State)
Many States offer broad freedom of testation, but spouses may have an elective share. Probate is common unless assets are in a trust. A Spanish will for Spanish assets, plus clarity on your governing State law, helps enormously.
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Ireland / Canada / Others
Similar themes: different formalities and probate steps, often broad freedom with some spousal protections. A Spain-specific will, harmonised with your home will, keeps things smooth.
The “two-will” approach (often best)
Key is harmonisation: precise wording so one does not revoke the other and both point to the intended law (via a clear choice-of-law clause).
Common pitfalls I see (and how to avoid them)
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No choice-of-law clause in a Spanish will (or in any will).
Solution: add an explicit election of your national law if that’s what you want applied.
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Accidental revocation: a new home-country will that revokes “all previous wills” (including your Spanish one).
Solution: carve-out language preserving the Spanish will.
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Paperwork surprises for heirs: missing NIE, untranslated death certificate, no Last Will Certificate from Spain.
Solution: prepare a short checklist now (see below).
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Assuming “probate” works the same everywhere.
Solution: accept that Spain uses notarial processes; plan accordingly.
A simple heir-readiness checklist
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Spanish notarial will limited to Spanish assets, with choice-of-law (if desired).
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Home-country will updated and harmonised (no unintended revocations).
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NIE numbers for future heirs (or a plan to obtain them quickly).
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Anticipate translations and apostilles (death certificate, probate extracts, etc.).
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Know your region’s Inheritance Tax rules and timing.
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Keep a single, updated file with property deeds, mortgage releases, and contact details.
Want me to explain your differences?
I’m happy to keep this non-commercial and on-thread. Tell me which jurisdiction your existing will is from (England & Wales, Scotland, a specific US State, Ireland, Canada, etc.), and I’ll outline—in plain English—the practical differences vs. a Spanish will, what a good choice-of-law clause might achieve, and the usual steps heirs will face in Spain.
Feel free to post general questions in the comments so other readers can benefit. (For personal cases, please avoid sensitive details.)
Thread:
Spanish Will or Home-Country Will?
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