The Spanish will of a foreign resident: the choice of law and the European Certificate of Succession

Most of the wills we draft in Costa Adeje and Corralejo are for people who already have one at home — a British will in a solicitor's safe, a German Testament at the Amtsgericht, a Dutch or Italian one at a notary — and who have been told, usually by a neighbour, that they "need a Spanish will for the house". The neighbour is half right. What a foreign resident needs is not a second will for its own sake, but two decisions the European Succession Regulation put in their hands in 2015 and that no home-country will takes for them: which law will govern their whole estate, and how their heirs will prove their rights in Spain and in the rest of the Union in the months after a death. This article explains the choice of law, why a resident of Tenerife or Fuerteventura who does not make it is handed Spanish forced heirship by default, how a Spanish will is made and what it must say to coexist with the one at home, and the European Certificate of Succession — the document that lets an heir named by a notary in Adeje walk into a bank in Hamburg. It does not touch inheritance tax; our note on inheritance in the Canaries does that.

One succession, one law: what the Regulation decided

For anyone who dies on or after 17 August 2015, the succession as a whole — every asset, in every country of the Union that applies the rules — is governed by a single law: «the law of the State in which the deceased had his habitual residence at the time of death» (Regulation (EU) 650/2012, arts. 21 and 83). A retired teacher from Leeds who has lived in Los Cristianos for six years dies under Spanish succession law, for the flat in Tenerife and for the savings in Leeds alike, unless she has done one thing: chosen otherwise. The Regulation allows a person to «choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death», and the choice «shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition» (art. 22). That is the professio iuris: one sentence in a will, and the whole estate follows the law of your passport instead of the law of your postcode.

The law chosen or applied by residence governs everything that matters — who inherits and in what shares, the rights of the surviving spouse, disinheritance, «the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death» (art. 23). Two limits are worth knowing. The Regulation binds every Member State except Denmark and Ireland; the United Kingdom never took part, so for a British national it is Spain that applies these rules, not the courts in London. And the choice is of the law of a nationality: a Dutch resident cannot choose English law because it is convenient, and a person with two passports may choose either.

The choice of law: one sentence that changes the whole will

The default is Spanish law, and Spanish law does not let a parent leave everything to a spouse. Children and descendants are forced heirs to two thirds of the estate — one third in equal shares, one third the testator may distribute among them as they wish — and only the remaining third is free (Código Civil, arts. 806–808); the widow or widower who is not separated takes a life interest in the middle third when there are children, in half the estate when there are only ascendants, and in two thirds when there are neither (arts. 834, 837 and 838). A British couple in Adeje who write «everything to my wife, then to the children» in a Spanish will without choosing English law have written a will that Spanish law will trim the day it is opened: the children may claim their two thirds, and the wife keeps a life interest in a third and the free third. With the sentence «I choose the law of my nationality, English law, to govern my succession as a whole», the same will is valid as written, because English law knows no forced heirship and the Regulation applies the chosen law to the reserved shares too.

Three details of the choice decide cases. It must be made in a disposition of property upon death — a will, in practice — and may be express or demonstrated by the will's terms: a British will that leaves the estate outside the Spanish rules has been read by Spanish notaries and registrars as an implicit choice, but an express clause costs one line and saves a dispute. The choice governs the estate as a whole: it is not possible to choose English law for the Spanish house and leave the rest to residence. And a choice made before August 2015 stands if it met the rules then in force in the State of residence or nationality (art. 83).

For nationals of a State outside the Regulation there is a second trap, and it catches owners who do not live in Spain. Where the applicable law is that of a third State — a British resident of Manchester who owns a flat in Corralejo dies under English law by residence — the Regulation applies that State's private international law as well, and where those rules send a question back to a Member State, the renvoi is accepted (art. 34.1). English rules send immovable property to the law of the place where it lies: the Corralejo flat comes back to Spanish law, forced heirship included. No renvoi applies where the deceased chose the law (art. 34.2) — which is why a British owner who does not live in Spain has as much reason to choose English law in a Spanish will as one who does.

Why a Spanish will, and how it is made

A choice of law can be made in the home-country will, and a foreign will is valid in Spain as to form if it complies with the law of the place where it was made or of the testator's nationality, domicile or residence (art. 27). The reason to make a Spanish will as well is not validity; it is time. The Spanish will is an open will signed before a notary, drawn in Spanish and in the testator's language in two columns when the notary does not know it, with an interpreter of the testator's choosing (Código Civil, arts. 679 and 684). The notary reports it to the Registro General de Actos de Última Voluntad, the central registry of wills, and after a death that registry certifies, from the fifteenth working day, which will was the last and before which notary — a certificate any heir obtains for a few euros with the death certificate (Reglamento Notarial, Anexo II). With those two certificates and the notary's authorised copy, the heirs sign the deed of acceptance and adjudication before any Spanish notary and register the flat within weeks. Without a Spanish will, the same heirs must first obtain the home-country grant or certificate — the English grant of probate, the German Erbschein where one can still be issued — have it apostilled and sworn-translated, prove the content of the foreign law to the Spanish notary, and only then sign: months, in our experience, against the six-month tax calendar our inheritance note describes.

What the Spanish will must say is as important as making it. It should be limited to the assets in Spain when there is another will abroad, and say so; it should declare that it does not revoke the will made abroad for the assets there — and the will abroad, when it is next updated, should return the courtesy, because the standard English clause «I revoke all former wills» has silently destroyed more Spanish wills than any court; it should contain the same choice of law as the will abroad, so that the two documents describe one succession; and it should name the heirs with the documents Spain will ask for — passports, dates of birth, the marriage — and appoint a contador-partidor or executor where the family is complex. A will made in Spain and one made abroad are not rivals; drafted together, they are two chapters of the same estate plan.

The European Certificate of Succession: the passport for the estate

Once the succession is opened, the heirs of a resident of Spain face a second border: the German bank, the French notary, the Italian land registry, each asking who the heirs are. The Regulation created for that purpose the European Certificate of Succession, «issued for use in another Member State», which any heir, legatee, executor or administrator may request to prove their status, their share or their powers (arts. 62–63). It is issued in the Member State whose courts have jurisdiction — for a person habitually resident in Spain, Spain (arts. 4 and 64) — and in Spain the competent authority is the notary who declares the succession or authorises the inheritance deed, or the court where the estate is litigated (Ley de Enjuiciamiento Civil, final provision 26, rules 11 and 14). It produces its effects in every Member State without any procedure, is presumed accurate, and protects a bank or a buyer who pays or transfers to the person it names (art. 69); its certified copies are valid for six months and can be renewed (art. 70). Its use is not mandatory (art. 62.2), but it is the document that turns a Spanish inheritance deed into a title the rest of the Union reads.

Two rulings of the Court of Justice draw its edges. A national certificate — the German Erbschein — may only be issued by the State of the deceased's habitual residence, so the family of a German who died resident in Tenerife will not obtain one from a German court for the account in Munich: they obtain the European Certificate from the Spanish notary (CJEU, C-20/17 Oberle, 21 June 2018). And a land registry of another Member State may refuse to register a property on a Certificate that does not identify it, so the Certificate for an heir who inherits a house in Italy must describe the house (CJEU, C-354/21, 9 March 2023). For assets in the United Kingdom the Certificate means nothing: the estate there is administered under English rules, with its own grant, and the Spanish will that chose English law helps only by describing one coherent succession.

A plan for a family with assets in two countries

• A British couple resident in Adeje, house in Tenerife, savings and a flat in England. A Spanish will each, limited to the Spanish assets, with an express choice of English law and a non-revocation clause; the English wills updated to acknowledge the Spanish ones. On a death: Spanish deed within weeks on the Spanish will; English grant for the English assets; no Certificate needed for the United Kingdom.
• A German resident of Puerto del Rosario with a bank account in Munich. Spanish law applies by residence unless German law is chosen; either way the Spanish notary issues the European Certificate that the Munich bank will accept, since no German court may issue an Erbschein for a resident of Spain. The choice between Spanish forced heirship and the German Pflichtteil is a decision, not a default.
• A British owner resident in Manchester with a flat in Corralejo. English law by residence, but the renvoi sends the flat to Spanish law and its forced heirship; a Spanish will choosing English law, limited to the Spanish assets, switches the renvoi off. Spanish notaries are competent for the Spanish assets under the subsidiary jurisdiction rule (art. 10).
• A Spanish national living in Berlin with a house in Fuerteventura. German law applies by residence; a choice of Spanish law in a will made before a Spanish or German notary keeps the succession under the rules the family knows, and the Certificate issued in Germany serves the Spanish registry if it describes the house.

A checklist before you sign a Spanish will

• Decide the law first, then the will: residence law by default, national law by choice; write the choice expressly, in the same terms, in every will you hold.
• Limit and coordinate: the Spanish will covers the Spanish assets, says it does not revoke the will abroad, and the will abroad says the same when next updated.
• Bring the heirs' data: passports, dates of birth, marriage and children's details as the Spanish notary and registry will require them.
• Sign in your language: the two-column will with an interpreter is your right, and the version you understand is the one you sign.
• Tell the family where the copies are: the registry certificate says which notary holds the will; the family needs the death certificate, the registry certificate and that notary's address.
• Plan the Certificate: if there are assets in another Member State, the Spanish notary who signs the inheritance deed will issue the European Certificate on request — ask for it in the same act.

Residence decides your law unless you decide first. A will written in Adeje under the law of Leeds is valid on both sides of the water; one written without the sentence belongs to the Civil Code.

Our inheritance team in Costa Adeje and Corralejo drafts Spanish wills for foreign residents and non-resident owners with the choice of law and the coordination clauses, reviews the will you hold abroad for the revocation trap, and, after a death, signs the inheritance deed and issues the European Certificate of Succession through the notary. Read how we work in Spanish wills and inheritance law, or book a consultation with our offices in Tenerife or Fuerteventura.

Common questions

Do I need a Spanish will if I already have a will in my home country?

Not for validity — a foreign will is valid in Spain if it meets the formal rules of the place where it was made or of your nationality, domicile or residence — but for speed and certainty. With a Spanish will, the heirs sign the inheritance deed before a notary within weeks on the registry certificate and the authorised copy; with only a foreign will they must first obtain the foreign grant, apostille and translate it and prove the foreign law. The Spanish will must be limited to the Spanish assets and must not revoke the will abroad, and vice versa.

What happens if I am resident in Spain and do not choose my national law?

Spanish succession law governs your whole estate, in Spain and abroad. Children and descendants are forced heirs to two thirds; the spouse takes a life interest in a third when there are children. A will that leaves everything to the spouse is trimmed to those shares. The choice of your national law, made expressly in a will, displaces those reserved shares for the whole estate.

Can I choose Spanish law instead of my national law?

Only if you are a Spanish national. The Regulation allows the choice of the law of a nationality you hold; a person with two nationalities may choose either. A foreign resident who does not choose is governed by Spanish law through residence, which is the same result without the choice — but the choice still fixes the law if you later move.

Who issues the European Certificate of Succession in Spain, and what is it for?

The notary who declares the succession or authorises the inheritance deed, or the court when the estate is litigated. It proves to a bank, a registry or a notary in another Member State who the heirs, legatees or executors are and what they may do, without any further procedure; its copies are valid for six months. It is issued in the State of the deceased's habitual residence — Spain, for a resident of the islands — and it is not needed for assets in the United Kingdom.

I live in the United Kingdom and own a flat in Fuerteventura. Does any of this apply to me?

Yes. English law applies by residence, but through the renvoi the Regulation accepts, English rules send the Spanish flat back to Spanish law and its forced heirship. A Spanish will limited to the Spanish assets that expressly chooses English law switches the renvoi off, and lets your heirs sign the inheritance deed in Spain within weeks.

This article is general information about Spanish and European law as it stands at the date of publication, not legal advice for your specific situation. The right plan depends on your nationality, your residence, where your assets are and the wills you already hold; have them reviewed together before signing anything.