Questions on Inheritance law
The testator is the person who leaves an inheritance (an estate) after death. The estate can be over-indebted.
A distinction is made between a statutory heir and a appointed heir. Statutory heirs are instituted by law. Statutory heirs include the relatives (descendants or parents, siblings) of the deceased and his spouse or registered partner (same-sex). In addition to statutory heirs, the testator may appoint other persons (e.g. live-in partners, godchildren, etc.) as heirs to the entire estate or a fraction thereof. Appointed heirs have the same status as statutory heirs. To avoid unintentionally breaching the statutory entitlements of the statutory heirs, we recommend that you obtain appropriate advice.
The legatee is a beneficiary of the deceased who is granted property as a legacy under a will or an inheritance contract. The legacy may consist of a specific thing, a right or a sum of money. Unlike the heir, however, the legatee does not have the status of an heir. The legatee only has a claim under the law of obligations to the delivery of the legacy bequeathed.
The executor is a person who has the capacity to act and who is instructed by the testator in a testamentary disposition to execute his will. The executor therefore performs the following tasks:
- Representation of the testator’s will
- Administration of the inheritance
- Payment of the deceased’s debts
- Transfer of legacies
- Preparation of the division of the estate (according to the instructions made by the testator or according to statutory provisions)
The testator may also appoint a legal person (e.g. Pilatushof AG) or several persons with capacity to act to execute his will.
The will – or testamentary disposition – be written by hand or drawn up by notarial deed. The testator must write the handwritten will, by hand, from beginning to end. He must also date (indicating the year, month and date of writing) and sign it. In certain situations, i.e. in exceptional circumstances, an oral disposition of the testator's wishes is also allowed (so-called emergency will).
The testator can change the will unilaterally providing he is capable of judgement.
Since amending a will often results in inconsistencies, we recommend that you obtain prior advice from a specialist.
Contrary to a will, the inheritance contract may not in principle be revoked or freely amended. However, some exceptions are very complex, so we strongly recommend you seek professional advice.
Exceptions may occur if:
a) All the parties to the inheritance contract agree to an amendment in the legally binding form; or
b) The parties to the contract did not wish it to be unamendable; or
c) In the event of unworthiness to inherit; or
d) A valid will mentions a verifiable ground for disinheritance and an instruction to disinherit is given.
In practice, exception (b) occurs the most often, such as when, decades earlier, spouses designate in an inheritance contract an heir who was not close to the first deceased spouse and who later estranges himself from the surviving spouse. This exception also applies to charitable institutions.
In the case of a contract of renunciation of inheritance, the heir waives his inheritance rights against the testator prior to the testator's death. This includes statutory inheritance entitlements. An heir who waives the inheritance is thus disregarded as an heir when the time of inheritance arrives.
Unless otherwise agreed, the waiver also applies to the descendants of the waiving person.
Occasionally, it is agreed that the testator may again consider the waiving person in his will notwithstanding the original waiver.
The contract of renunciation of inheritance can be concluded in exchange for payment.
The testator's will as a prerequisite for drawing up a will
In principle, the testamentary disposition must be made in the testator's own hand. This is so that the testator's will to dispose of his or her assets upon death can be expressed. However, as a rule, the testator's will must be independently verified irrespective of whether the formal requirements are met (Federal Supreme Court 5A_405/2022 of 3 April 2023).Read more
"What happens if I leave two different wills? Which one will ultimately apply after my death?"
If no will is left, intestate succession in accordance with Art. 457 ff. Swiss Civil Code come into play. If one wishes to apply the so-called voluntary succession and also appoint other survivors as heirs who are not provided for as such by law, this must be done by means of a testamentary disposition.Read more
What happens if no will was made before passing away?
If a person passes away suddenly and unexpectedly, or has not made a will before his or her death for other reasons, sooner or later the question arises as to how the inheritance is to be divided and also who is to be considered as the heir. But what happens if no will was made before passing away?Read more
Lower compulsory portions in the Swiss inheritance law
Modernisation of the almost century-old inheritance law of Switzerland: In future, testators will be able to freely dispose of a larger part of the estate. This was approved in the 2020 winter session of the Swiss parliament. What does it mean?Read more