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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?
Since August 17 2015 the EU Successions Regulation (650/2012) has governed international inheritance.
According to Swedish inheritance law, a testator may dispose of his or her estate by will with the following restrictions. Under forced heirship provisions, the children and surviving spouse are entitled to inherit a certain portion of the estate, regardless of the testator’s wishes as expressed in his or her will. Consequently, children are entitled to half of the shares to which they would be entitled under inheritance law. Moreover, the surviving spouse has an absolute right to receive four times the basic amount specified under the National Insurance Scheme (Skr45,500 for 2018). This latter right takes precedence over the heirship of the children. In order to benefit from the forced heirship rights, the children or spouse must enforce a claim to the rights.
Another limitation to these rights is that a surviving spouse cannot dispose of his or her inheritance from the first deceased by will, unless he or she has received the assets in question through a will after the first deceased gave him or her the right to dispose of the assets by will. In other words, property held with free disposal rights – and not full ownership – cannot be disposed of through a will.
Establishing a fideicommissum through a will is not valid under Swedish law.
What rules and procedures govern intestacy?
In the absence of a valid will, the property of a deceased person will be distributed in accordance with Swedish inheritance law.
The distribution of an estate by inheritance law is essentially based on the fact that relatives closer to the deceased should inherit before more distant relatives. Thus, the direct heirs of the deceased (ie, children and grandchildren) inherit first. Only if there are no direct heirs can other relatives inherit. The so-called ‘second inheritance class’ includes the deceased’s parents, siblings and nieces and nephews. Grandparents and parents’ siblings are included in the third inheritance class. One inheritance class must be completely empty before the legacy proceeds to the next inheritance class.
Notably, if the deceased was married at the time of death, the surviving spouse has the right to inherit not only before the second and third inheritance classes, but also before joint children. However, the surviving spouse will inherit with free disposal rights, not full ownership. Consequently, joint children receive their inheritance after both parents have died. Children of the deceased – but not of the surviving spouse – can claim their lawful share at the time of their parents’ death. Surviving cohabitants do not inherit under inheritance law.
What rules and restrictions (if any) apply to the governing law of a will?
On August 17 2015 Sweden’s international inheritance legislation came into line with the EU Successions Regulation (650/2012). The legislation applies to the succession of persons who died on or after August 17 2015.
According to Article 24 of the EU Successions Regulation, a will’s admissibility and substantive validity will be governed by the law applicable when the will was established. A person may also choose the law that he or she could have chosen in accordance with Article 22 and the conditions set out therein.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
Anyone 18 years or older or who is or was married at a younger age, may dispose of his or her property by will. Moreover, anyone 16 years or older can dispose of his or her earned income by will.
To be valid, a will must be made in writing and signed by the testator in the presence of two witnesses. If an emergency makes it impossible for a will to be made in such a form, it is possible to make an oral disposition of property before two witnesses or produce a handwritten document signed by the testator. Such emergency wills are invalid if the testator could have made a normal will in the succeeding three months.
A testator may revoke his or her will by making a new will, or in any other manner that indicates that the will has been revoked. When revoking an existing will, the formal requirements for setting up a will need not be met.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
If a legal heir wants to have a will declared invalid, he or she must start a legal proceeding against the beneficiaries within six months of the date on which he or she was notified of the will. The claims must be based on any of the grounds of invalidity set out in the law.
How is the validity of a will established in your jurisdiction?
If the validity of a will is contentious, the court will make a final decision on its validity. However, the court will make such a decision only if a legal heir starts a court proceeding claiming that the will is invalid. The claims must be based on any of the grounds of invalidity stated in the law.
If legal actions regarding the validity of the will are not brought within six months of the date on which the legal heirs were notified of the will, the will will be considered valid.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Foreign wills are recognised if they are valid under the applicable law according to the EU Successions Regulation.
According to Article 27 of the EU Successions Regulation, a will is valid if its form complies with the law of the state in which the disposition was made. The same is true if its form complies with the law of the state in which:
- the testator held citizenship, either at the time when the disposition was made or at the time of death;
- the testator was domiciled, either at the time when the disposition was made or at the time of death; or
- the testator had his or her habitual residence, either at the time when the disposition was made or at the time of death.
Insofar as immovable property is concerned, a will is considered valid if its form complies with the law of the state in which that property is located.
A European certificate of succession can be used to prove that a will is valid under the law of another member state.
What rules and procedures govern:
(a) The appointment of estate administrators?
If no special administration has been arranged (ie, no executor or estate administrator have been appointed to administrate the estate or execute the will), the parties to the estate – that is, the surviving spouse or cohabitant, the heirs and universal legatees – must jointly administrate the estate. The same parties are then entitled to represent the estate against third parties and have the right to bring and respond to actions before court in cases concerning the estate. However, if an estate is divided between spouses after the testator’s death, or if such division cannot be made, the surviving spouse or cohabitant will not be party to the estate, as long as he or she is not also an heir or universal legatee.
However, if so requested by a party to the estate, the court will appoint an estate administrator to administrate the deceased’s property. When an estate administrator is appointed, he or she absorbs the rights, obligations and responsibility that, according to the main rule, belong to the parties to the estate. A party requesting that the court appoint an estate administrator need not assign motives or reasons for making such a claim. Consequently, in such cases, the court will not consider why the party has requested an estate administrator to be appointed. The estate administrator must be a person that can be expected to have the knowledge and insight required – especially with regard to the character of the estate. If an executor is already appointed under the will, he or she will also be appointed as estate administrator, as long as there are no objections.
Notably, both parties to an estate and an executor under the will can call for the appointment of an estate administrator. The same is true for a legatee or creditor, if considered necessary based on the circumstances of the case.
(b) Consolidation and administration of the estate?
An estate inventory will be drawn up within three months of the testator’s death. The estate inventory must contain information about the property and debts of the deceased and their value upon the testator’s death. If the deceased was married, both spouses' assets and debts will be noted and valued individually. Further, the name, social security number, address and day of death of the deceased must be noted. In addition, the estate inventory must contain information about who should have been notified about the estate inventory proceeding and who attended.
After the estate has been properly investigated, a deed of the distribution of the estate will be drawn up. If the deceased was married, an estate division between spouses will be made before the distribution of the estate takes place. The same applies if there is a surviving cohabitant which, in accordance with the Cohabitees Act, calls for an estate division.
The deed of the distribution of an estate can be drawn up as an agreement between the parties to the estate or as a decision made by an estate administrator. The agreement or the decision declare the rights of the heirs and legatees, and can be used in relation to third parties as a proof of a certain right and to distribute the estate.
(c) Distribution of the estate to heirs?
The distribution of the estate is handled and executed by the individuals administrating the estate. During the estate investigation, those administrating the estate are responsible for taking care of the property of the deceased. Debts must be paid before the final distribution of the estate. Consequently, the net value of the deceased’s property will be divided between the heirs. Once the estate is ready to be distributed, the property will be handed over to the heirs and beneficiaries.
Notably, special rules apply to the distribution of legacies. For example, legacies can be distributed and handed over to legatees more or less immediately – that is, before the estate is fully investigated, the final distribution of the estate is drawn up or a deed of the distribution has become legally binding.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
The estate is an independent legal entity, responsible for its own costs and debts, including taxes. Before the estate is distributed and the property is divided between heirs and universal legatees, all debts must be paid.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
There is no inheritance or gift tax in Sweden.
As a rule, any gifts given to a direct heir by the deceased will be deducted from the heir’s inheritance, as an advance of the inheritance. This rule will be upheld unless otherwise prescribed or if the circumstances at the time of the gift clearly demonstrate another intent.
If the recipient of a gift is not a direct heir, an opposite presumption applies. Then deduction will be made only if this has been prescribed or must be assumed, due to the circumstances, to have been intended when the property was given.
Further, Swedish inheritance law includes an enhanced protection for the portion of the inheritance to which a direct heir is entitled under the rules on forced heirship. Where the deceased has given away property under such circumstances or on such understanding that the gift is meant to equate to a will, the worth of the gift at the time of the testator’s death will be returned to the estate (when calculating the portion of the inheritance to which the direct heir is entitled under the forced heirship provisions).
Consequently, the rule applies only if the gift has led to an infringement of a direct heir’s right. Any court actions in this regard must be brought no later than one year after the deceased’s estate inventory has been finalised. After this time, the right to take legal action will have lapsed.