Swiss Wills and Modifications to the Legislation of Inheritance

Lawyer Month-to-month has had the pleasure of listening to from Swiss legal professional Cecile Ringgenberg, who offers an summary of how wills are formed in Switzerland and what has modified because the new legislation got here into impact on 1 January 2023.

Beneath what circumstances might a overseas nationwide set up a Swiss will?

If a overseas nationwide has his final domicile in Switzerland, the judicial or administrative authorities of this domicile are competent to take care of the inheritance process, besides relating to his immovable property situated exterior Switzerland, if the state of location claims unique competence. (Lex rei sitae)

(Artwork. 86 Federal Act on Worldwide Non-public Legislation)

If a overseas nationwide doesn’t have his final domicile in Switzerland, however on the time of dying owns property situated in Switzerland, the Swiss judicial or administrative authorities of the place the place the property is situated are competent to take care of the property to the extent that the competent overseas authorities don’t take care of it. This is applicable to movable property (financial institution accounts) and immovable property (actual property) situated in Switzerland.

If a number of properties and procedures exist in a number of nations, the process takes place in Switzerland if it was first to open the inheritance process.

(Artwork. 88 Federal Act on Worldwide Non-public Legislation)

Nevertheless, even when the Swiss judicial or administrative authorities will not be competent to liquidate the inheritance, they’re competent to take the required provisional measures for the safety of the portion of property situated in Switzerland,

(Artwork. 88 Federal Act on Worldwide Non-public Legislation) Lastly, if the inheritance process takes place in a rustic which, like Switzerland, has ratified the Hague Conference on the conflicts of legal guidelines relating the type of testamentary inclinations of 6 October 1961, the Swiss will will probably be legitimate within the overseas inheritance process a minimum of as to its kind.

Bilateral conventions between Switzerland and different nations needs to be examined on this respect earlier than establishing the invoice.

If a number of properties and procedures exist in a number of nations, the process takes place in Switzerland if it was first to open the inheritance process.

What legislation is relevant within the Swiss inheritance process?

In precept, Swiss legislation is relevant to the Swiss inheritance process.

Nevertheless, the overseas nationwide might pronounce a ‘professio iuris’ in his Swiss will submitting his inheritance to the legislation of his nationwide state, even when the inheritance process takes place in Switzerland. It will keep away from the appliance of the obligatory portion (see beneath) within the Swiss inheritance process, leaving the overseas nationwide free to get rid of his property to whom he needs, an consequence accepted by the Swiss Federal Court docket.

(Artwork. 90 al.2 Federal Act on Worldwide Non-public Legislation) (Swiss Federal Court docket Resolution, 102 II 136)

Moreover, the ‘professio iuris’ will keep away from the appliance of a number of legal guidelines to an inheritance if the inheritance process takes place in a number of nations, thus avoiding incoherencies and supplementary prices.

Nonetheless, it should first be decided if the legislation of the nationwide state involved accepts a ‘professio iuris’ and below what situations it’s accepted.

(Artwork. 90 al. 2 Federal Act on Worldwide Non-public Legislation)

What sorts of disposition are permitted below the Swiss legislation of inheritance?

Public Will (Artwork. 499 Swiss Civil Code)

The testator mandates a notary public or one other designated official and communicates his will to the notary or the official within the presence of two witnesses. The doc thus established is dated and signed by all current and registered within the acts of the notary or the official.

Handwritten Will (Artwork. 505 Swiss Civil Code)

The testator writes his will by hand from the start to the top indicating place, 12 months, month and day of the writing, indicators it by hand and deposits it on the place  indicated by the Cantonal legislation.

Oral Will (Artwork. 506 – 508 Swiss Civil Code)

The oral will is an emergency resolution happening in entrance of two witnesses, if the testator is incapable to proceed with a public or handwritten will in instances reminiscent of imminent dying, breakdown of communications or epidemy. One of many witnesses writes down the contents and notes the place, 12 months, day and hour and the circumstances of the incapacity, writing to be signed by the opposite witness. The witnesses deposit the writing immediately on the competent judicial authority.

The oral will loses its validity 14 days after the testator has recovered his capability and is once more in a position to proceed with a public or handwritten will.

In precept, Swiss legislation is relevant to the Swiss inheritance process.

What’s the ‘obligatory portion’ and the way does it have an effect on the desire?

The content material of the desire is proscribed by the obligatory portion of the a part of inheritance of shut authorized heirs.

It might solely be eradicated by disinheritance on account of grave circumstances (Artwork. 477 Swiss Civil Code) or if the individual entitled to the obligatory half has renounced on his proper in a pact of inheritance within the type of a public will.

Artwork. 512 Swiss Civil Code)

With out disinheritance or renunciation, the testator can solely dispose inside the out there quota and respecting the obligatory portion.

The discount/elimination varieties the primary a part of the current revision of the Swiss legislation of inheritance getting into into pressure on 1 January 2023 (see beneath).

What function do executors play?

The testator might appoint one or a number of executors to execute the desire and to manage the inheritance through the use of the identical kind wherein the desire was established.

The executor has the identical rights and duties because the official inheritance administrator.

The appointment of an executor is particularly warranted in giant and sophisticated inheritances with a global side and authorized issues that the heirs might not be capable to resolve themselves. Additionally, their lack of ability to succeed in the unanimous choices required to manage and finalise the inheritance could also be a purpose to nominate a number of executors.

(Artwork 518 and 554 Swiss Civil Code)

What can impact a revocation of the desire?

The desire could also be revoked at any time through the use of the authorized kind wherein it was established.

If a brand new will changing the outdated will is written, it is strongly recommended to expressly revoke the outdated will within the new will.

(Artwork. 509 ff. Swiss Civil Code)

What impression has the latest revision of the Swiss legislation of inheritance had on wills?

The aim of the revision of the greater than 100-year-old Swiss legislation of inheritance is to allow the legislation to embrace right now’s new types of life and relationships, reminiscent of partnerships exterior marriage, serial relationships and patchwork households, following the mounting variety of divorces.

(Artwork. 470-472 Swiss Civil Code)

The revision is especially involved with the discount or elimination of obligatory parts of authorized heirs. It’s going to allow to higher take into account non-married companions – who even below the brand new legislation are nonetheless not authorized heirs – in addition to step-children and extra. It’s going to additionally depart extra room for charities.

Moreover, it’ll enable for a better a part of a household enterprise to be transmitted to the inheritor keen to take over the enterprise, whereas hopefully enabling him to respect the now diminished obligatory parts of the opposite heirs. This may occasionally assist to keep away from the compelled sale of household enterprises so as to allow the lawful partition of the inheritance, as this was typically the case thus far.

The newly launched reductions and eliminations of the obligatory parts are the next:

Descendants

The descendants previously had a obligatory share equal to 3 quarters. They now have a obligatory share of 1 half of their a part of the inheritance.

(Outdated Artwork. 470 and 471 / New Artwork. 470 and 471 CCS)

Mother and father

The mother and father previously had a obligatory share of 1 half. They’ve now no obligatory share in any respect.

(Outdated Artwork. 470 and 471.2 / New Artwork. 470 and 471 CCS, not mentioning mother and father in any respect)

Spouses Throughout a Divorce Process

Ought to a partner decease throughout the divorce process, the surviving partner will lose his or her obligatory share of 1 half within the joint inheritance, offered the divorce has been collectively launched and the spouses have lived individually for a minimum of two years. It’s famous that the surviving partner’s obligatory share of 1 half in any other case stays untouched.

(New Artwork. 472 CCS)

How are present wills affected by the revision?

The precept is that present wills keep legitimate after the brand new legislation comes into impact. Nevertheless, as the brand new legislation applies from 1 January 2023, the testator might wish to determine if he needs to revoke his present will and write a brand new will seizing the chance to distribute his property extra freely below the brand new legislation.

Additionally, the prevailing will will not be clear as if it refers back to the then-existing obligatory portion or if it might get replaced by a brand new revised obligatory portion. Due to this fact, it is strongly recommended to overview the prevailing will in any case so as to see if it needs to be retained or changed by a will below the brand new legislation to make clear the state of affairs.

Cecile Ringgenberg, Legal professional at Legislation

Rue Michel-Chauvet 3, 1208 Genève, Switzerland

Tel: +41 22 347 52 53

E-Mail: cecile.ringgenberg@ringlaw.ch

Cecile Ringgenberg practices on the Bar of Geneva in Switzerland. She is a health care provider of legislation of Zurich College with a number of years of observe in worldwide humanitarian legislation on the ICRC in Geneva and in Africa, in addition to three years of observe within the legislation of worldwide organisations on the European Group for Nuclear Analysis (CERN). Amongst her achievements are a choice on documentary credit score obtained with a colleague on the Federal Tribunal, making jurisprudence (BGer 4C.66/2004 of 01.06.2004), and her profitable illustration of victims in quite a few worldwide funding frauds.