Inheriting Spanish Property: What A Recent Ruling Means For British Families

A ruling published by Spanish authorities in November 2025 has clarified how Wills made by British nationals before the EU Succession Regulation came into force are treated under Spanish law, with significant implications for anyone who owns property in Spain.

British nationals who own property in Spain and have not reviewed their succession arrangements since 2015 face a risk that is easy to overlook and potentially costly for their families to resolve. The EU Succession Regulation, which came into force in August of that year, fundamentally changed the rules governing cross-border estates within the EU. The UK did not adopt the Regulation, and while that in itself was not unusual, it means the relationship between English and Spanish succession law now requires careful navigation rather than any assumption that the two systems will simply work in tandem.

Under the Regulation, the default position is that the law of the country where a person was habitually resident at the time of their death governs their entire estate. For a British national living in Spain, that is Spanish law, including its rules on forced shares for certain family members, which have no direct equivalent in English law. The Regulation does allow individuals to elect that their national law applies instead, a choice known as professio iuris, and making that election clearly in a Will is one of the most practical steps a British national with Spanish assets can take. The problem is that many people who made Wills before 2015 never did so, because the Regulation did not yet exist.

A resolution published in November 2025 in Spain’s Official State Gazette has now shed important light on how those older Wills are treated, and the outcome is more favourable than many families might have expected.

A 1987 Will and a disputed registration

The case arose following the death of a British national in August 2022. He had owned property in Spain and had made a Will before a Spanish notary in 1987, under which he left his Spanish assets to his wife, with a fallback provision in favour of a daughter from his first marriage. When his widow’s representative sought to register the transfer of the property at the Land Registry in Puerto de la Cruz, Tenerife, the registrar refused to proceed.

The registrar’s concern was that the 1987 Will contained no express statement about which country’s law was intended to govern the succession. Given the testator’s British nationality, he was not satisfied that the estate had been correctly administered across jurisdictions and indicated that an English Grant of Probate might be required before the Spanish registration could go ahead. The notary who had prepared the inheritance deed appealed the decision, and the matter went before Spain’s Directorate General of Legal Certainty and Public Faith.

The Directorate General’s decision

The Directorate General found in favour of the notary on both points and directed the Land Registry to register the transfer.

On the question of applicable law, the Directorate General relied on Article 83(4) of the EU Succession Regulation, a transitional provision designed to protect those who made Wills before the Regulation came into force. It provides that where a pre-2015 Will was drawn up in accordance with a law that the testator could have elected under the Regulation, that law is treated as having been chosen, even without an express statement to that effect.

In this case, the notary had recorded his familiarity with English law at the time of drawing up the Will, and the dispositions themselves were consistent with the way a British national would ordinarily structure their estate. The Directorate General held that those features were sufficient to constitute a tacit election of English law. The absence of a formal professio iuris clause was not fatal.

On the question of probate, the Directorate General rejected the registrar’s position. Where a British national has executed a Will before a Spanish notary, and the notary certifies in the inheritance deed that the formalities required by English law have been observed, no English Grant of Probate is required to register the transfer of Spanish property. Imposing that requirement, the Directorate General said, would place an unnecessary burden on cross-border estate administration, contrary to the purpose of the Regulation.

The practical implications

For families currently dealing with the estate of a British national who owned property in Spain, this ruling offers genuine reassurance. It confirms that a Spanish notarial Will can anchor the succession to English law without a formal election clause, and that the process of registering a property transfer in Spain need not wait on English court proceedings.

That said, the case itself is a reminder of what can go wrong in the absence of clear drafting. The family involved faced delay, additional expense and real uncertainty before the Directorate General ultimately resolved the matter. A Will that contained an explicit choice of English law would very likely have avoided the dispute entirely.

For anyone who owns property in Spain and whose Will either predates 2015 or does not address which country’s law should apply, a review is advisable. Adding a clear election of English law is not a complicated exercise, but the protection it provides for those left behind is significant. It is also worth noting that Brexit has added further complexity to this area. The UK is now treated as a third country under the EU Succession Regulation, which makes the interaction between English and Spanish succession rules an area where specialist advice is genuinely important.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.