Lawyer Monthly had the pleasure to hear from Cecile Ringgenberg (Swiss attorney), who gives an overview of Swiss wills and the changes since the new law took effect on January 1, 2023.
What circumstances can a foreign national make a Swiss will?
A foreign national who has his last domicile in Switzerland is competent to administer the inheritance process. However, it is not possible for the state of jurisdiction to decide if his immovable property is located outside Switzerland. (Lex rei sitae)
(Art. (Art.
A foreign national who does not have a last domicile in Switzerland but has property in Switzerland at the time of his death is subject to Swiss judicial and administrative authorities. This applies to both movable property (bank account) and immovable (realty) located in Switzerland.
If there are multiple properties or procedures in different countries, the procedure is done in Switzerland if the first one to open the inheritance process.
(Art. (Art.
Even though the Swiss judicial and administrative authorities may not be competent to liquidate an inheritance, they can take the necessary provisions to protect the property that is located in Switzerland.
(Art. (Art.
Before establishing the bill, it is important to examine bilateral conventions between Switzerland et al.
If there are multiple properties or procedures in different countries, the procedure is done in Switzerland if the first one to open the inheritance process.
Which law applies to the Swiss inheritance process?
The Swiss inheritance procedure is in principle subject to Swiss law.
The foreign national can declare a “professio Iuris” in his Swiss will, submitting his inheritance law to his home country, even though the inheritance process took place in Switzerland. This will prevent the compulsory portion (see below), which is applied in Swiss inheritance procedures. The foreign national can then dispose of his assets to whomever he wishes, which is accepted by the Swiss Federal Court.
(Art. (Art.
The ‘professio Iuris’ will also avoid multiple laws being applied to an inheritance in the event that the procedure is in different countries. This will prevent incoherencies as well as additional costs.
However, it is necessary to determine if the law in question accepts a “professio Iuris” and under which conditions.
(Art. 90 al. 90 al.
What types of dispositions are allowed under Swiss inheritance law?
Public Will (Art. 499 Swiss Civil Code)
In the presence of two witnesses, the testator orders a notary public to act on his behalf. All present sign the document and it is registered in the acts by the notary or official.
Art. 505 Swiss Civil Code)
The testator creates his will from beginning to end by hand, indicating the year, month, and day. He then signs it and deposits it at the Cantonal law.
Oral Will (Art. 506 – 508 Swiss Civil Code)
An oral will is a solution in an emergency situation that is made in front of two witnesses if the testator is unable to make a public or handwritten will. This is used in cases of imminent death, breakdown in communications, epidemy, or other circumstances. The contents are written down by one witness. He or she also notes the date, time, place, and hour. The witnesses immediately deposit the written evidence at the competent judicial authority.
After 14 days, the oral will ceases to be valid.
The Swiss inheritance procedure is in principle subject to Swiss law.
What is the “compulsory part” and how does it impact the will?
The compulsory inheritance portion of close legal heirs limits the content of the will.
It can only be eliminated by disinheritance in the event of grave circumstances (Art. It may only be eliminated by disinheritance due to grave circumstances (Art. 477 Swiss Civil Code), or if the person entitled has renounced his right under a pact for inheritance in the form a public will.
Art. 512 Swiss Civil Code)
The testator cannot dispose of the compulsory portion if he or she does not disinheritance.
The reduction/elimination forms the main part of the present revision of the Swiss law of inheritance entering into force on 1 January 2023 (see below).
What is the role of executors?
One or more executors may be appointed by the testator to execute the will and administer the inheritance using the same form as the will.
The executor is subject to the same duties and rights as the official administrator of the inheritance.
In large inheritances, which may have a complex international component and other legal issues that are not easily solved by the heirs, it is necessary to appoint an executor. Appointing one or more executors may also be necessary if the heirs are unable to reach unanimous decisions to manage and finalize the inheritance.
(Art 518 & 554 Swiss Civil Code).
What are the steps to revoke a will?
You can revoke the will at any time using the legal form that was used to create it.
It is advisable to expressly cancel the old will when a new will replaces the existing one.
(Art. 509 ff. Swiss Civil Code)
How has the Swiss inheritance law been revised recently?
After the increasing number of divorces, the purpose of the revising of the over 100-year-old Swiss law on inheritance is to allow the law to accommodate today’s new forms and relationships such as partnerships outside of marriage and patchwork families.
(Art. 470-472 Swiss Civil Code)
This revision focuses on the elimination or reduction of mandatory legal heirs. It will allow us to consider non-married spouses, who even under the new law still are not legal heirs. It will also make it easier to support charities.
It will also allow for a larger portion of a family business to be transferred to the heir who is willing to take it over. This will, hopefully, allow him to keep the reduced compulsory shares of other heirs. This could help avoid the forced sale of family businesses in order to allow the lawful division of the inheritance.
These are the new reductions and eliminations to the compulsory portions:
Descendants
The compulsory share of three quarters was previously held by the descendants. They have now a compulsory share equal to one-half of their inheritance.
(Old Art. 470 and 471 / Nouveau Art. 470 and 471 CCS
Parents
The compulsory share that parents had in the past was one-half. They no longer have a compulsory share.
(Old Art. 470 and 471.2/New Art. 470 and 471 CCS (no longer mentioning parents).
Spouses during a Divorce Process
If a spouse dies during a divorce proceeding, the surviving spouse will be entitled to a half of the joint inheritance. This is provided that the divorce was jointly filed and the spouses have lived apart for at least two consecutive years. The compulsory share of one-half that is left to the surviving spouse remains unaffected.
(New Art. 472 CCS)
What is the effect of revision on existing wills?
Existing wills are valid even after the new law takes effect. The new law is effective as of January 20, 2023. However, testators may wish to decide whether to revoke their existing will or write a new one to take advantage of the opportunity to share his assets more freely.
The existing will might not be clear if it refers only to the compulsory portion that was in place at the time or whether it could be replaced with a revised compulsory portion. It is recommended that you review any existing will to determine if it should remain or be replaced with a will according to the new law.
Cecile Ringgenberg, Attorney at law
Rue Michel-Chauvet 3, 1208 Geneve, Switzerland
Tel: +41 22 347 52 53
E-Mail: [email protected]
Cecileringgenberg is a lawyer at the Bar of Geneva, Switzerland. A doctor of law from Zurich University, she has many years of experience in international humanitarian law at ICRC in Geneva and Africa. She also has three years of experience in the law of international organizations at the European Organization for Nuclear Research. Her achievements include a decision on document credit that she obtained from a colleague at Federal Tribunal, making Jurisprudence (BGer4C.66/2004). She also represented victims in many international investment fraud cases.