What You Need to Know When a Loved One Owned Spanish Assets

Many people from around the world own property in Spain, whether a holiday villa on the Costa del Sol, an apartment in Barcelona, or land in the Balearic Islands. When the property owner dies, their heirs face a complex legal challenge: navigating Spanish succession law from abroad.

If you are an heir or executor dealing with Spanish property following a bereavement, the process can feel overwhelming. The rules are different from those you may be familiar with in England or elsewhere, and the consequences of getting them wrong can be significant, including personal liability for the deceased’s debts.

At Scornik Gerstein LLP, we specialise in guiding international clients through every step of this process. This article explains the key legal considerations, depending on whether the deceased was resident in Spain or abroad at the time of death.

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English Law vs Spanish Law: A Fundamental Difference

Understanding the difference between the English and Spanish approaches to succession is essential:

• English law is “estate-centred.” A personal representative (executor or administrator) gathers the assets, pays all debts and taxes, and only then distributes the residue to beneficiaries. Crucially, an heir in England never personally assumes the deceased’s debts.

• Spanish law takes a very different approach. An heir who accepts the inheritance “purely and simply” (aceptación pura y simple) assumes personal liability for all debts of the deceased, even those exceeding the value of the estate. The only way to limit liability is to accept “with benefit of inventory” (a beneficio de inventario), which caps the heir’s responsibility at the value of inherited assets.

This distinction matters enormously. Which system applies to your situation depends on the deceased’s circumstances at the time of death.

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Scenario 1: The Deceased Was Resident in Spain

Under the EU Succession Regulation (No. 650/2012), which Spain applies, the default rule is that the law of the country where the deceased was habitually resident at the time of death governs the entire succession. If your loved one was living in Spain, Spanish substantive succession law will generally apply to all their assets worldwide, including property in England or elsewhere.

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Key points for heirs:

• Spain has multiple regional succession laws. The applicable rules may be those of the Spanish Civil Code (for most of Spain) or the specific civil law of Catalunya, the Basque Country, Navarra, Aragón, the Balearic Islands, or Galicia. Spain’s internal conflict rules determine which applies.

• Debt liability is a real risk. If you accept the inheritance without limitation, you could become personally liable for debts you did not know existed. Accepting a beneficio de inventario is critical to protect yourself.

• A choice-of-law clause may change everything. Under Article 22 of the Regulation, the deceased could have chosen the law of their nationality to govern the succession. For example, a British national resident in Spain who chose English law in their will would ensure that heirs are never personally liable for the estate’s debts. This is called professio juris (choice of applicable law).

Practical tip: Always check the will for a choice-of-law clause before taking any steps to accept the inheritance.

However, if Spanish law applies because the deceased was habitually resident in Spain and did not make a valid professio juris (choice-of-law clause), there is another critical consequence: Spanish law contains mandatory rules known as legítimas (forced-heirship rights). These reserve part of the estate for certain close relatives, typically children and, depending on the applicable regional law, sometimes the surviving spouse, and a will cannot simply override them. An existing English will, especially one made before the EU Succession Regulation came into force or without taking account of it, may therefore be wholly or partly ineffective. Any gifts that conflict with the legítimas may be reduced or set aside to the extent needed to protect the forced heirs.

If the deceased died without a will (intestate), the estate would instead be distributed under Spanish intestacy rules, which can differ significantly from the English rules. The surviving spouse’s share, children’s rights and the position of more distant relatives may all be different. This is why anyone living in Spain should review their will in light of the Regulation and, if they wish to preserve the effect of an English will, consider including a valid professio juris clause (a choice of the law of their nationality).

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Scenario 2: The Deceased Was NOT Resident in Spain

This is the more common scenario for our clients: the deceased lived in England (or elsewhere outside Spain) but owned property in Spain, typically a holiday home or investment property.

Which law applies?

Under the EU Succession Regulation, the default applicable law would be English law (as the law of habitual residence). The question of how Spanish courts treat this is nuanced:

• English private international law applies a “scission” principle: movable property follows the law of the deceased’s domicile, but immovable property (such as a Spanish villa) is governed by the law of the place where it is situated (the lex situs).

• However, the Spanish Supreme Court (Tribunal Supremo) has consistently rejected a partial renvoi that would apply Spanish law only to the Spanish immovables while the rest of the estate remains under English law. Spanish courts will not fragment the succession in this way.

• The result: English substantive succession law governs the entire succession, including the Spanish property.

This is good news for heirs. Under English succession law, you will not be personally liable for the deceased’s debts. The estate-centred model protects beneficiaries.

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Strengthening certainty: professio juris

If the deceased included a choice-of-law clause in their will selecting English law (or the law of their nationality), the position is even clearer. Article 34(2) of the Regulation expressly excludes renvoi where the deceased made a professio juris, meaning there is no room for argument about which law applies. The Court of Justice of the EU has confirmed that this option is available to third-country nationals (not just EU citizens).

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Practical Steps and Challenges

Regardless of which scenario applies to you, dealing with Spanish property in an international succession involves several practical hurdles:

• Probate in England: You will typically need to obtain a Grant of Probate or Letters of Administration from the English courts before you can deal with the Spanish assets.

• Spanish property registration: Transferring title at the Spanish Land Registry (Registro de la Propiedad) follows Spanish procedural law, including execution before a Spanish notary, regardless of which substantive law governs the succession.

• Tax obligations: You may face Inheritance Tax in the UK and the Spanish Inheritance and Gift Tax (Impuesto sobre Sucesiones y Donaciones). Proper structuring is essential to avoid double taxation and to take advantage of available reliefs.

• European Certificate of Succession: This document, issued under the EU Regulation, can be used to prove your status as heir before Spanish authorities without needing separate Spanish proceedings.

• Proving foreign law: Where the applicable law is English, Spanish notaries and registrars will require evidence that foreign law has been correctly applied. This often involves expert legal opinions and apostilled documents.

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Planning Ahead: Protecting Your Heirs

If you own property in Spain and live outside the country, one of the most important steps you can take is to include a choice-of-law clause (professio juris) in your will, selecting the law of your nationality under Article 22 of the EU Succession Regulation. This:

• Eliminates uncertainty about which law governs your succession;

• Ensures unity of succession across all jurisdictions;

• Protects your heirs from personal debt liability under Spanish law; and

• Is respected by Spanish notaries, registrars, and courts as a matter of EU law.

The Court of Justice of the EU has confirmed that this right is available to nationals of any country, not just EU Member States. Whether you are British, American, Australian, or of any other nationality, you can make this choice.

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How Scornik Gerstein Can Help

Our team combines deep expertise in both English and Spanish law, enabling us to guide you through the entire process, from initial advice to final registration of the property in your name.

We can assist with:

• Determining which law applies to your specific situation;

• Obtaining Probate in England and managing the English proceedings;

• Liaising with Spanish notaries and the Land Registry;

• Advising on acceptance of the inheritance and protecting you from debt liability;

• Tax planning across both jurisdictions to minimise your overall tax burden; and

• Drafting or reviewing wills with appropriate choice-of-law provisions for the future.

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