For a US citizen inheriting property in Spain, the process involves navigating two distinct legal systems simultaneously—American estate law and Spanish inheritance law—along with coordinating tax obligations in both countries.
This comprehensive guide covers the complete process: understanding your legal rights as a US heir, obtaining required documentation from US courts and probate, filing Spanish inheritance tax returns within strict deadlines, registering the property in your name with the Spanish Land Registry, managing ongoing tax obligations as a non-resident property owner, and implementing strategic planning to minimize double taxation.
Whether you are inheriting a vacation home in Andalusia, a rental property in Madrid, or a family estate split across multiple regions, the process is entirely manageable with proper legal guidance—but mistakes in any step can delay title transfer by months, result in penalties, or create unexpected tax liabilities. This guide provides the precise legal and procedural framework, step-by-step checklists, cost estimates, and strategic planning approaches that minimize risk and ensure your Spanish inheritance is properly settled.
Part I: Understanding Your Rights as a US Citizen Inheriting Spanish Property
Legal Framework: When US Law and Spanish Law Collide
The fundamental challenge: When a US citizen dies owning property in Spain, their estate is governed by TWO different legal systems:
- US probate law (for the estate as a whole and assets in the US)
- Spanish inheritance law (for property located in Spain, tax obligations, and title transfer)
Neither system has automatic authority over the other. You must comply with both.
Key point: There is no automatic probate process in Spain. The Spanish government does not recognize US wills or US court orders without proper legalization. You cannot simply transfer a Spanish property by US court decree—you must execute the transfer through Spanish notarial procedures.
Who Has Rights to Inherit: Forced Heirship vs. Testamentary Freedom
This is where US and Spanish law diverge dramatically.
US Inheritance Law (Typically)
In most US states, the deceased has full testamentary freedom. A person can:
- Leave their entire estate to one person (disinheriting others)
- Leave assets to non-family members (friends, charities)
- Designate conditional bequests or trusts
- Create complex trust arrangements
Spanish inheritance law does NOT recognize this flexibility.
Spanish Inheritance Law: Forced Heirship (Legitima)
Spain has strict forced heirship rules. A portion of the estate (the «legitima») must go to direct heirs, regardless of the deceased’s wishes.
Forced heirship breakdown:
| Heir Type | Share (Legitima) | Forced Heirship? |
|---|---|---|
| Children (under 21) | 2/3 of estate | YES—cannot be disinherited |
| Children (21+) | 1/3 of estate | YES—cannot be disinherited |
| Spouse | 1/2 of estate (typically) | QUALIFIED—can be reduced by deceased’s choice |
| Parents/Grandparents | 1/3 of estate | YES—if no children |
| Siblings | Generally none | NO |
| Non-family members | Only from «disposable» portion | NO—only get what’s left |
Critical implication for US citizens: If a US citizen resident in Spain dies with a US will leaving all property to a spouse and nothing to children, that will is INVALID in Spain. Spanish courts will override the will and ensure children receive their forced share (1/3 or 2/3 depending on age).
However, if the deceased was habitually resident in the US (domiciled in California, Florida, etc.) and merely owned property in Spain, US law may apply to succession, and the US will is valid. This requires explicit election and proper documentation.
The Conflict: How It Gets Resolved
Under EU Regulation 650/2012 (which Spain has adopted), the succession law of the country where the deceased was habitually resident at death applies. However, the deceased can choose a different law by explicit election in the will.
Practical scenarios:
- Scenario A: US resident (Florida) with Spanish property + US will
Succession governed by US law. Forced heirship does NOT apply. - Scenario B: Spain resident with Spanish property + any will
Succession governed by Spanish law. Forced heirship rules APPLY. - Scenario C: «Mixed» case—US citizen moving to Spain, unclear residency
Must determine «habitual residence» at time of death. May require explicit election of governing law.
Critical action: If you are a US citizen with property in Spain, ensure your will explicitly states which law governs. Consult both a US and Spanish lawyer to verify there are no conflicts.
Property Ownership: How Spanish Land Registry Works
Spanish property ownership is registered in the Spanish Land Registry (Registro de la Propiedad). This is a public record of all property ownership, liens, mortgages, and encumbrances.
Key point: Possession alone does not equal ownership in Spain. You must be registered in the Land Registry to be the legal owner.
For inherited property:
- The property is registered in the deceased’s name at time of death.
- You (the heir) have the right to inherit, but do NOT automatically become the registered owner.
- You must formally accept the inheritance and register the title transfer.
- Only after registration are you the legal owner for all purposes.
Timeline: Spanish property does NOT transfer until the inheritance deed is signed before a notary and registered. This typically takes 2–4 weeks after notarial execution.
Part II: The Step-by-Step Legal Process for Inheriting Spanish Property as a US Citizen
Phase 1: Gathering US Documentation (Weeks 1–4)
1. Death Certificate (Official, Apostilled, and Translated)
- What it is: Official document proving death.
- How to get it: Contact vital records office. Order 10–15 certified copies.
- Apostille: Must include an apostille from the state secretary of state.
- Translation: Must be translated by a sworn translator (traductor jurado).
2. Last Will and Testament (Full Copy, Apostilled)
- What it is: Original or certified copy of the will.
- How to get it: From executor or probate court. Must be apostilled and translated.
- Spanish consideration: Check the Spanish Registry of Wills (Registro de Actos de Última Voluntad) for any Spanish will.
3. Letters Testamentary or Letters of Administration (Court-Issued, Apostilled)
- What it is: Court document proving executor’s authority.
- Why critical: Spanish notaries require proof of legal authority.
4. Affidavit of Domicile (Optional but Helpful)
A sworn statement confirming legal residence at death. Helps establish governing law.
5. Property Valuations and Deed Information
- Original property deed (escritura).
- Recent property valuation (catastral value or market appraisal).
- Mortgage info if applicable.
Phase 2: Confirming Which Law Governs the Succession (Week 2–3)
Step 1: Determine the Deceased’s Habitual Residence
Under EU Regulation 650/2012, the law of the country of habitual residence applies.
| Factor | Indicator of Spanish Residence | Indicator of US Residence |
|---|---|---|
| Domicile | Registered resident (empadronamiento) | Domicile in US state |
| Time spent | 183+ days/year in Spain | 183+ days/year in US |
| Economic interests | Main business/income in Spain | Main business/income in US |
Step 2: Review the Will for Explicit Election of Law
Best practice: A properly drafted will includes an express choice of law clause electing US law (e.g., «I hereby elect that my succession shall be governed by the laws of the State of California…»).
Step 3: Obtain a Spanish Wills Registry Certificate
Confirms if a Spanish will exists. Essential to avoid conflicts.
Phase 3: Obtaining Spanish Tax Identification and Legal Capacity (Weeks 3–6)
Step 1: Obtain NIE (Foreigner Identity Number)
Required for: Inheritance tax filing, bank accounts, property registry.
How to get: At Spanish consulate or via a Spanish lawyer.
Step 2: Understand Non-Resident vs. Resident Tax Status
- Resident: Taxed on worldwide assets.
- Non-resident: Taxed only on Spanish property (for inheritance purposes).
Phase 4: Legal Steps in Spain Before Title Transfer (Weeks 4–8)
Step 4A: File Spanish Will Registry Search and Probate Verification
Verify ownership and absence of disputes through a Spanish lawyer.
Step 4B: Prepare the Inheritance Deed (Escritura de Aceptación y Adjudicación de Herencia)
The formal Spanish legal document accepting inheritance and distributing assets. Contains heir identification, asset description, valuation, and distribution.
Phase 5: Notarial Execution and Property Registration (Weeks 8–12)
Step 5A: Execute the Deed Before a Spanish Notary
All heirs (or representatives with power of attorney) sign the deed before a notary. The deed is recorded electronically immediately.
Step 5B: Land Registry Registration (Weeks 9–12)
The Land Registry updates the title in your name. Important: You are NOT the legal owner until registered.
Phase 6: Spanish Inheritance Tax Filing (Deadline: 6 Months from Death)
Critical deadline: You have exactly 6 months from the date of death to file returns.
Step 6A: Calculate Your Inheritance Tax Base
Gross Value - Debts - Allowances = TAXABLE BASE
Step 6B: Apply Tax Rates and Deductions
Spanish inheritance tax is progressive (7.65% to 34%).
Regional reductions (Critical):
- Andalusia: 99% reduction for principal family home.
- Madrid: Up to 99.9% reduction for children.
- Valencia: 75% reduction for real estate in some cases.
Step 6C: File the Inheritance Tax Return (Modelo 650)
Each heir files separately. Must be filed at the regional Tax Agency office or online.
Step 6D: Payment of Inheritance Tax
Due within 30 days of filing. Non-payment triggers penalties.
Part III: Specific Issues for US Citizens Inheriting Spanish Property
Issue #1: Coordinating US Estate Tax with Spanish Inheritance Tax
US citizens may owe both taxes. Under the US-Spain tax treaty, you can claim a foreign tax credit for Spanish tax paid against US estate tax liability.
Issue #2: Basis Step-Up (US Capital Gains Tax Planning)
Inherited property receives a «step-up in basis» to fair market value at date of death for US tax purposes. This can eliminate US capital gains tax if sold immediately. Action: Document FMV at date of death.
Issue #3: Future Tax Obligations as Non-Resident Property Owner
- IBI (Real Estate Tax): Annual local tax (0.4%–1.1%).
- IRNR (Non-Resident Income Tax): 19% (EU) or 24% (non-EU) on rental income.
- Wealth Tax: If applicable in region.
Issue #4: Selling the Inherited Property
If sold, non-residents pay 24% Capital Gains Tax on the profit (Sale Price – Value at Inheritance).
Part IV: Complete Procedural Checklist
Timeline Overview: 4–8 Months Typical
| Phase | Activity | Duration |
|---|---|---|
| Phase 1 | Gather US documents | 4–8 weeks |
| Phase 2 | Confirm governing law | 2–3 weeks |
| Phase 3 | Obtain NIE | 2–4 weeks |
| Phase 4 | Prepare inheritance deed | 2–4 weeks |
| Phase 5 | Execute deed & register | 2–4 weeks |
| Phase 6 | File tax returns | 2–4 weeks |
Post-Death Checklist (Weeks 1–26)
- ☐ Obtain death certificate (apostilled/translated).
- ☐ Initiate US probate / obtain Letters Testamentary.
- ☐ Obtain NIE for all heirs.
- ☐ Spanish lawyer prepares inheritance deed.
- ☐ Execute deed before notary.
- ☐ File inheritance tax (Modelo 650) within 6 months.
- ☐ Register property in Land Registry.
Part V: Key Strategic Planning Opportunities
Strategy #1: Timing and Jurisdiction Planning
Apply the most favorable regional tax rules (e.g., Madrid/Andalusia 99% reductions) if eligible.
Strategy #2: Lifetime Gifting Before Death
Consider gifting (donación) during lifetime if gift tax rates are lower than inheritance rates in your region.
Strategy #3: Spousal Planning
Utilize marital deductions and community property rules to minimize tax.
Part VI: Important Disclaimers
Professional Fees Are Illustrative: Fees mentioned are examples for 2025 and vary by case.
Not Legal Advice: This guide is educational. Consult qualified professionals for your specific situation.
Tax Laws Change: Verify current rates with a tax advisor.
How Lextax Helps US Citizens Inherit Spanish Property
Integrated Legal + Tax Service
Lextax specializes in US-Spain inheritance cases, providing:
- US-Spain Legal Coordination.
- Inheritance Deed Preparation.
- Regional Tax Planning.
- Inheritance Tax Filing (Modelo 650).
- Property Registration Support.
- US Estate Tax Coordination (Form 706).
ROI on Professional Planning
Example: Inheritance of €400,000 home in Andalusia.
Without planning: €96,000 tax.
With Lextax planning (99% reduction): €640 tax.
Net Saving: €87,760 (after fees).
Action Steps: Start Your Inheritance Process Today
If you are a US citizen inheriting property in Spain, schedule a confidential consultation with Lextax:
- Email: hello@lextax.es
- Website: lextax.es/inheritance-property-consultation
- Phone: [Contact number]
