The Spanish Apartment, the Mortgage and Forced Heirship

Your Spanish property does not pass to your wife automatically when you die, and the mortgage on it does not stop. Those two sentences undo most of what British owners assume about a flat abroad, and they are the reason a holiday apartment can turn into the most expensive item in an estate.

A second country means a second set of succession rules deciding who inherits, a second legal process before anything can be sold or transferred, and a second tax authority wanting money to a deadline of its own — in Spain, generally within six months of the death. Meanwhile the Spanish bank carries on charging interest every month on a property that nobody yet has the legal power to sell.

None of this is a reason to panic about owning abroad. It is a reason to deal with it deliberately, because almost every part of it can be arranged in advance and almost none of it can be fixed afterwards. This page covers the mortgaged property specifically: who gets it, who owes the loan, what the deadlines are, and what your family will actually be doing in the months after you die.

There is no survivorship in Spain

In England and Wales, most couples own their home as joint tenants, and the share of the first to die passes to the survivor automatically, outside the will. That mechanism does not exist in Spanish property law. Co-owners hold separate undivided shares, and when one dies, that share goes into their estate and passes under whichever succession law applies. The survivor does not simply absorb it.

The closest English analogue is owning as tenants in common, where each share is dealt with by the will rather than passing automatically — the consequences of which are set out in where a tenant in common's half share actually goes. Spain, in effect, gives you no other option.

The practical result is that a surviving spouse can end up owning part of a Spanish flat alongside their own children, or alongside children from an earlier relationship, unable to sell without everyone's agreement and unable to remortgage. If there are stepchildren in the picture, the position starts to look very like the domestic dispute described in whether stepchildren can force the sale of a house, but conducted in a language and a court system nobody in the family knows.

Whose law decides who inherits

Spain applies forced heirship. A fixed part of an estate — the legítima — is reserved for the deceased's children and descendants, with the surviving spouse entitled to a life interest over part of it, and only a minority of the estate left to be given away freely by will. Several regions, including Catalonia, the Balearics, Galicia, Aragón, Navarre and the Basque Country, apply their own civil law with different reserved shares again, so the answer depends on where in Spain the property and the person are connected.

There is a way out of it, and it is the single most important thing on this page. Under the EU Succession Regulation, the default is that the law of the country where you were habitually resident at death governs your estate, but you may instead choose the law of your nationality. The Regulation applies universally in the states that adopted it, so a British national can elect English and Welsh, Scots, or Northern Irish law, and Spain will apply that choice. Freedom to leave your estate as you wish then replaces the reserved shares.

Three conditions attach to that in practice. The choice has to be made expressly, in a will, in terms a Spanish notary will accept. It is far safer to make a separate Spanish will dealing only with the Spanish assets, drafted so that it does not revoke your UK will — a badly drafted second will that revokes the first is a well-known and thoroughly avoidable disaster. And the election governs succession, not tax: choosing English law does not move you out of the Spanish tax net.

The same framework, with different local rules, applies across most of the EU, so an apartment in France, Portugal or Italy raises the same question with a different answer. The mechanics of running two succession processes at once are covered in why a property abroad needs its own probate too.

The second process, and the months it takes

A UK grant of probate has no direct effect on Spanish land. Your executors will be running two processes, and the Spanish one has its own sequence.

They will need the death certificate, usually in multilingual form or translated; a certificate from Spain's central register of wills, which shows whether a Spanish will exists and who prepared it; the UK grant, carrying an apostille and a translation by a sworn translator; and a Spanish foreigner identification number, an NIE, for every single heir, including any who have never set foot in the country. Only then can the heirs sign a deed of acceptance of the inheritance before a Spanish notary, pay the taxes, and register the change of ownership at the Spanish land registry.

Each of those steps is ordinary. Together, they take months, and they take longer when an heir lives in another country, is unwell, is a child, or simply cannot be persuaded to sign. Executors already find cross-border administration punishing when everyone is cooperative; the constraints are much the same as those in inheriting an asset the family cannot easily sell. Until the deed is signed and registered, nobody has the legal power to put the property on the market.

If the flat is let out, that gap has its own consequences: rent has to be collected, tax has to be paid on it, and tenants have rights that continue regardless of who has died. The general principle is the same as it is at home, where a tenancy does not end because the landlord has died.

Tax due before the money exists

Here is the part that catches families hardest. Spanish succession tax is charged on each beneficiary, on what they receive, rather than on the estate as a whole, and it is generally payable within six months of the death. An extension of a further six months can be requested, but the request itself has to be made inside the first five months. Miss the deadline and surcharges and interest are added.

The rate depends on the value inherited, the relationship to the deceased and the region, and the regional reliefs vary enormously — some autonomous communities have reduced the effective charge on close family almost to nothing, while others have not. That variation is real money, and it is worth taking advice from a Spanish lawyer on the specific region rather than reading a general summary. There is also usually a separate local tax charged by the town hall on the transfer of urban land.

Read the sequence again and the problem becomes obvious. The tax is due within six months. The property cannot be sold until the inheritance has been accepted and registered, which routinely takes longer than that. So the family has to find the tax from somewhere other than the asset being taxed — which, for most people, means from savings, from borrowing, or from a life insurance policy.

On the UK side, if you are a long-term UK resident for inheritance tax purposes — the test moved from domicile to a residence-based rule in April 2025 — your worldwide assets, including the Spanish flat, fall within the UK charge. A mortgage secured on the property is normally deducted from its value, subject to conditions. There is no inheritance tax treaty between the UK and Spain, so where both countries tax the same asset, relief comes through HMRC's unilateral credit for the foreign tax paid. GOV.UK publishes the current inheritance tax rules and the guidance on assets held overseas.

Meanwhile the Spanish lender keeps charging

The mortgage does not pause for a death, in Spain any more than in Britain. Interest accrues, direct debits continue until the account funding them is frozen, and a missed payment starts a process that is expensive and unfamiliar.

Two things need doing quickly. Tell the Spanish bank in writing, in the same way you would tell a UK lender — the reasoning behind acting early is set out in whether you have to tell the mortgage lender someone has died, and it applies with more force abroad, because everything takes longer. Then find out whether a life policy was attached to the loan when it was taken out. Spanish banks have frequently required or strongly encouraged one, sometimes with the bank itself as beneficiary. Families have paid mortgages for years without realising a policy existed that would have cleared the balance.

There is also a rule with no British equivalent, and it matters enormously. In Spain an heir who accepts an inheritance outright accepts the debts that come with it, and can be liable for them beyond the value of what they inherit. An heir can instead accept a beneficio de inventario — with the benefit of inventory — which limits liability to the assets received, or renounce the inheritance altogether. These are formal steps with time limits, taken before a notary. Nobody should sign anything in Spain relating to an inheritance that includes a mortgaged property without local legal advice first.

What the heirs cannot do is simply carry on paying and treat the loan as theirs. A mortgage is a contract with the person who signed it, and inheriting the bricks does not transfer the borrowing — the same principle explained in why you cannot simply take over a parent's mortgage. Keeping the property means repaying the existing loan and arranging new borrowing, from a lender that will assess the new owner on their own income, in a country where they may not be resident.

Scotland and Northern Ireland

The choice-of-law election is made by nationality, and the United Kingdom contains three separate legal systems, so the choice has to identify the right one. Someone connected with Scotland elects Scots law; someone connected with Northern Ireland elects Northern Irish law. Getting this wrong, or leaving it vague, is one of the commoner drafting faults in wills covering foreign property.

It is worth knowing what you are electing into. Scots law is not a system of complete testamentary freedom either: a surviving spouse, civil partner and children have legal rights over the deceased's moveable estate that a will cannot defeat, although heritable property such as land and buildings is not subject to them. Northern Ireland follows a system closer to that of England and Wales, with its own legislation and its own grant process.

The UK document the Spanish notary will be shown also differs. In Scotland it is confirmation rather than a grant of probate, and executors should expect to explain that, with a translation, more than once.

What to fix while you are still here

Almost every problem on this page is cheaper to solve now than to inherit later. Five things are worth doing.

• Make a Spanish will covering only the Spanish assets, containing an express choice of the law of your nationality, and drafted so that it does not revoke your UK will.
• Write down where everything is. The deed reference, the land registry details, the mortgage account, the local lawyer or gestor, the community of owners, the utility accounts, the insurer. Your executors will be doing this from another country and cannot ask you.
• Check whether a policy is already attached to the mortgage, who the beneficiary is, and whether it is still in force.
• Decide who actually wants the property. If one child wants to keep it and the others want the money, saying so now is worth more than any clause in a will.
• Make sure liquid money will arrive quickly. This is the point of the whole exercise.

That last item is what life cover does in a cross-border estate. A policy held in trust normally pays out to the people you name without waiting for a grant, and outside your estate for UK inheritance tax, which means cash can reach your family in the weeks when a Spanish deadline is running and no asset can yet be sold. A level term policy is the usual shape where the sum needed does not fall over time — a foreign tax bill and a foreign mortgage both behave that way. If you are the one in the household who handles everything, it is worth reading what happens if the person who does the caring and the admin dies first, because the answer shapes how much cover the rest of the family actually needs.

You can get life insurance quotes and have an FCA-authorised broker set the sum and the term against the real numbers: the outstanding foreign mortgage, the likely tax, and the months of costs before anything can be sold. Whether cover is available, and on what terms, depends on underwriting — your age, health and where you live — so nobody can promise acceptance in advance, and a policy pays only what its terms provide. Our guide to mortgages and property when someone dies covers the UK side of the same question.

Frequently asked questions

Do Spanish forced heirship rules apply to a British owner?

Not necessarily. Under the EU Succession Regulation you can choose the law of your nationality to govern your estate, so a British owner who makes that election expressly in a valid will can usually have English, Scots or Northern Irish law applied instead of Spanish forced heirship. Without a clear election, the default is the law of the country where you were habitually resident when you died.

How quickly is Spanish inheritance tax due?

Spanish succession tax is generally payable within six months of the death, with a further six-month extension possible if it is applied for within the first five months. That deadline usually falls long before a property can legally be sold, so families frequently have to find the money from savings, borrowing or a life insurance policy instead.

Does a UK grant of probate work in Spain?

Not on its own. Spanish assets normally require a separate process before a Spanish notary, using the UK grant with an apostille and sworn translations, together with a certificate from the Spanish register of wills and an identification number for each heir. It adds months, and the Spanish mortgage carries on accruing interest throughout the whole process.