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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
Swiss succession law establishes a numerus clausus of dispositions by inheritance. Upon death, individuals may dispose of their property by will or by inheritance agreement.
A will is a unilateral arrangement that may be modified or revoked by the testator at any time. An inheritance agreement is an arrangement between the testator and one or more parties which can be modified only with all parties’ written consent.
Swiss inheritance law guarantees the principle of testamentary freedom. However, this principle is limited since legal heirs are entitled to an intangible part of the estate (so-called ‘forced heirship entitlements’). The forced heirship rights are:
- three-quarters of the succession right in the case of a direct descendant;
- half of the succession right in the case of a parent; and
- half of the succession right in the case of a surviving spouse or registered partner.
However, the abovementioned forced heirship amounts could be reduced in future as a legislative reform is currently pending.
Legal heirs can claim their forced heirship amount by way of a specific judicial action; however, they may also waive their forced heirship rights by means of an inheritance agreement.
What rules and procedures govern intestacy?
If a person dies without leaving a will or an inheritance agreement, assets not disposed of by the deceased pass on to his or her legal heirs.
The Swiss intestate regime is based on a parental system and the deceased’s nearest legal heirs are his or her direct descendants in equal portion. However, when the deceased dies without leaving any issue, the legal heirs are his or her parents. Predeceased parents are represented by their own issue (ie, brothers or sisters of the deceased). However, in the absence of any representative of the deceased’s parents, surviving spouse or registered partner, the legal heirs are the deceased’s grandparents. Predeceased grandparents are represented by their own issue (ie, the uncles and aunts, as well as the cousins, of the deceased person).
A surviving spouse or registered partner is considered to be a legal heir and will be entitled to:
- half of the deceased’s estate – the other half is divided between the deceased’s issue;
- three-quarters of the deceased’s estate – the remaining quarter is attributed to the deceased’s parents or their issue; or
- the entire succession when no father, mother or any issue of the deceased is alive.
If the deceased has no legal heir, the estate is attributed to his or her canton of last domicile, or the municipality designated by the cantonal legislation.
What rules and restrictions (if any) apply to the governing law of a will?
The succession of an individual last domiciled in Switzerland is governed by Swiss law.
However, foreign citizens residing in Switzerland may submit their succession to their national law (professio juris). A dual national who has both Swiss and foreign nationality and is residing in Switzerland may not elect foreign law to apply to his or her succession. However, this may be subject to change, as the Swiss Federal Council has proposed to amend the law in order for dual nationals to be able to elect foreign law as being applicable to their estate.
Irrespective of any choice of law, Swiss private international law provides that the administration of the estate (in particular, administration and enforcement measures) is governed by the law of forum (lex fori), which is in principle Swiss law when the deceased’s last domicile was Switzerland.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
A will can take three different forms:
- a will by public deed – made by a public official in the presence of two witnesses;
- a holographic will – this must be written entirely in the testator's own hand; or
- an oral will – the testator's declaration of his or her last wishes to two witnesses who then communicate it to an authority.
However, an oral will can be used only if the deceased is prevented from drawing up a will in another form – typically, in case of a life-threatening emergency.
In addition, an inheritance agreement (ie, an arrangement between the testator and one or more parties and which, contrary to a will, can be modified only with all parties’ written consent) is made by a public official in the presence of two witnesses.
Both wills and inheritance agreements can be registered with the Swiss Register of Wills in Bern and neither are public. These documents are opened by the competent cantonal judicial authority on the death of the testator and a copy of the testamentary provisions is communicated to the interested parties (eg, heirs, legatees and executors).
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
Two types of action can challenge the validity of a will or inheritance agreement:
- an action for the declaration of invalidity; and
- an action in abatement.
These actions can be taken only after the death of the testator.
An action for the declaration of invalidity pertains to the formal validity of a will or inheritance agreement (eg, rules on the capacity to dispose or on the form of the disposition).
An action in abatement relates to the material validity of a will or inheritance agreement (in particular, compliance with the forced heirship entitlements).
Both actions must be filed with a civil court within one year from the date on which the contesting party becomes aware of the grounds for nullity – notably, the infringement of his or her forced heirship rights.
How is the validity of a will established in your jurisdiction?
The validity of a testamentary provision can be challenged before a civil court.
If the validity of a will or inheritance agreement is not contested, it is deemed to have been validly drawn up.
In order to be valid, a testamentary provision must be drawn up under one of the forms prescribed by Swiss law. In addition, the testator must have been over 18 years old and fully capable of discernment at the time of the disposal.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
The validity of foreign wills and inheritance agreements is governed by the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 (known as the ‘Hague Testamentary Form Convention’), to which Switzerland is a party.
The Hague Testamentary Form Convention provides that a will is valid as to its form if it meets the requirements of the domestic law of:
- the place in which the testator wrote the will;
- the testator’s place of citizenship, either at the time that the disposition was made or at the time of his or her death;
- the testator’s place of domicile, either at the time that the disposition was made or at the time of his or her death;
- the place in which the testator had habitual residence, either at the time that the disposition was made or at the time of his or her death; or
- the place in which the real estate is situated, to the extent that immovable properties are concerned.
An official translation of a foreign will may be requested by the competent Swiss authority.
What rules and procedures govern:
(a) The appointment of estate administrators?
There are two types of administrator: executors and an official administrator.
The deceased may, by testamentary disposition, designate one or more individuals to be executors of his or her estate. Executors are automatically notified of their mandate by the competent authority on the death of the testator, but can decline the mandate within 14 days from the notification.
In certain circumstances (eg, following a prolonged absence of an heir or if the deceased’s heirs are unknown), the authority may nominate an official administrator to protect the heirs’ interest.
(b) Consolidation and administration of the estate?
All of the deceased’s assets and liabilities automatically pass to his or her heirs upon death. The heirs thus automatically become joint owners of the estate until it is formally divided between them. Until then, the estate falls under the administration of the executor. In particular, the executor must:
- establish an inventory of the deceased’s assets and liabilities;
- pay the deceased’s creditors;
- manage the estate’s assets;
- pay out legacies; and
- prepare the division of the estate in accordance with the deceased’s will.
Where the deceased has not designated an executor, all heirs in common (ie, the group of heirs) must administer the estate. The competent authority may also appoint one of the heirs as a representative of the group until the time of division.
(c) Distribution of the estate to heirs?
Unless the deceased has provided otherwise, the estate can be freely distributed among the heirs. However, the testator may prescribe – by will or inheritance agreement – for certain rules to apply to the division and formation of lots.
An heir may request that the estate be divided by a judicial authority at any time and generally when faced with a dispute among the heirs regarding the division process.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
In principle, the decedent’s debts are settled by the executor from the estate’s assets.
However, the heirs who have accepted the estate are personally, jointly and severally liable for the deceased’s debts. This liability also extends to their personal assets.
Inheritance taxes are due by the respective heirs and legatees personally. However, most cantonal inheritance tax laws provide that all heirs are jointly liable for the payment of the inheritance taxes due. In certain circumstances, some cantons may even provide that the executor is jointly liable with the heirs.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
Different planning measures can be envisaged in order to minimise the legal heirs’ forced heirship rights. For instance, spouses can agree on specific matrimonial property rules whereby the forced heirship portion of their common children is reduced. Legal heirs can also agree to renounce their forced heirship portion by way of an inheritance agreement.
Further, foreign citizens may elect their national law as applicable to their estate with the consequence that the Swiss forced heirship rules do not apply.
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