Dying abroad: what happens to your UK property when you live in Spain

A couple in their late fifties own a flat in Kensington and a villa outside Valencia. They have been Spanish tax residents for four years. When the husband dies, his family assumes English law will govern the Kensington flat because it is in England. Spanish law will govern the villa because it is in Spain. Neither assumption is entirely correct, and the gap between assumption and reality is where estates become expensive, slow, and contested.

Cross-border succession is not a niche problem. There are several hundred thousand British nationals living in Spain, many of whom also retain UK property. The legal framework governing what happens on death is split across two jurisdictions, two tax authorities, and, since Brexit, a relationship that has become meaningfully more complicated.

The Brussels IV election and why it still matters after Brexit

EU Succession Regulation 650/2012, commonly called Brussels IV, came into force in 2015. Its default rule is that the law of the country where you are habitually resident at the time of death governs your entire estate, including assets in other countries. For a British national habitually resident in Spain, that default is Spanish succession law, applied to the Kensington flat as much as to the Valencia villa.

Brussels IV also allows a one-time election: you may choose that the law of your nationality governs your estate instead. For a British national, that means English law (or Scots law, if applicable). This election must be made expressly, in writing, in a valid testamentary document, typically the will itself.

The United Kingdom never participated in Brussels IV as a member state, and since Brexit it participates less still. However, Spanish courts continue to apply Brussels IV, and the nationality election made by a British national in a Spanish-recognised will remains valid and enforceable in Spain. The practical point is this: if you are habitually resident in Spain and your will contains no nationality election, a Spanish court may apply Spanish forced heirship rules, the legítima, to your entire estate, including the property in England. Spanish forced heirship reserves a fixed portion for children and, in some circumstances, a surviving spouse, regardless of what your English will says.

Making the election does not eliminate Spanish probate requirements for Spanish-sited assets. You will still need a Spanish grant of representation for the villa. But it gives you meaningful control over the distribution of your estate as a whole, and it prevents a situation where your carefully drafted English will is read alongside, rather than instead of, Spanish intestacy rules.

Inheritance tax: two countries, two bites

Death while Spanish-resident exposes your estate to inheritance tax in both countries, though the precise exposure depends on domicile, residence, and the siting of individual assets.

In the UK, inheritance tax (IHT) is charged on the worldwide estate of anyone domiciled in England and Wales at the time of death. Domicile is a distinct legal concept from residence; it is broadly the country you intend as your permanent home. Many British nationals living in Spain remain English-domiciled for years, sometimes indefinitely, which means HMRC may claim IHT on the entire estate, Spanish property included, above the applicable nil-rate band thresholds. You should take advice on whether you have acquired, or wish to acquire, a Spanish domicile of choice, and what the consequences of that shift would be.

Spain levies Impuesto sobre Sucesiones y Donaciones on assets located in Spain and, for Spanish-resident heirs, potentially on assets received from abroad. The rates and allowances vary substantially by autonomous community, Madrid and Andalucía apply significant reliefs; others are considerably less generous. A double-taxation treaty between the UK and Spain on inheritance and estate tax does not currently exist in the comprehensive form that income-tax treaties take, which means double taxation on the same asset is a genuine risk. Mitigation requires careful structuring, ideally long before death, with advice from professionals qualified in both jurisdictions.

Beyond the legal questions, there is a more immediate and practical problem that families in this situation encounter: documents. A Spanish notary processing the Valencia villa needs the English grant of probate, translated and apostilled. The English probate registry needs the original Spanish death certificate, also translated. If those documents are not stored somewhere the family can locate them, quickly, in the first weeks of grief, the administration stalls. Accounts freeze. Property cannot be sold. Beneficiaries wait.

Keeping a will in a solicitor's file is not sufficient if the family does not know which solicitor, or if the will is the English one and the Spanish one is held separately. The nationality election must be in the document the Spanish notary sees. The Spanish will must not inadvertently revoke the English one by using sweeping language about prior testamentary dispositions. These are not abstract risks. They arise in practice, regularly, in precisely the situations where families are least equipped to manage them.

If your life straddles two countries, your estate planning and your document organisation should reflect that. Glenvault is built for families in exactly this position, store both wills, your property deeds, the Brussels IV election, and every instruction that matters in a single private vault, accessible to the right people at the right moment. Begin at glenvault.com/signup.