– April 28, 2022

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?

If the deceased did not leave a will, intestate succession applies. The law of succession determines the legal heirs in the CC. This means that the legal heirs usually not only receive their compulsory share, but the rest of the estate is also divided among them, since this is precisely what would otherwise have been regulated in a will. Heirs protected by the compulsory portion include only relatives of the deceased, i.e. a relatively small group of persons. Depending on the situation, these include the following relatives of the deceased:

  • the children (Art. 457 CC)
  • the spouse or the registered partner (Art. 462 CC)
  • the parents (Art. 458 CC)

If the deceased is married or lives in a registered partnership and has children, 50% of the inheritance goes to the children or their descendants and 50% to the partner. In the case of predeceased children, their children, i.e. the grandchildren of the deceased, become the next heirs. If the deceased has no children, 75% will go to the partner and 25% to parents, siblings, nephews and nieces etc.

If the deceased is unmarried, does not live in a registered partnership and has children, 100% of the inheritance goes to the children or, if the children predecease him/her, to their descendants. However, if the testator has no children, 100% goes to the parents and their descendants. If the parents are no longer alive and the parents’ descendants are also missing, 100% of the inheritance goes to the grandparents. 100% of the inheritance goes to the commune or the canton, should there be no partners/relatives or descendants.

If a will is drawn up, the testator may adjust the heirs and the division of the inheritance. In doing so, the statutory compulsory portions must be observed (Art. 471 CC). What remains of the estate after this is referred to as the testator’s free quota. This is the part which the testator can dispose of freely in a will. The testator can distribute the free quota completely freely. This part does not necessarily have to be given to relatives, but can also go to friends or foundations, for example. 

Whether with or without a will, the compulsory portions regulated by law must be observed. Thus, only the disposition of the part of the testator’s free quota changes. If he has a will, he decides what happens to this part; if he does not have one, it is divided among the existing heirs.

As you can see, there are numerous ways in which an inheritance can be divided. Our lawyers and our notary will be very happy to help you with any questions you may have.