Estate planning: What you should know if you live in Switzerland
One’s own demise is not a very happy prospect. But planning for it can give you peace of mind and make life easier for your family.
In Switzerland, the process does not necessarily need to be expensive or time-consuming. But it is important to know what you can and what you can’t do.
1. The Holographic or Olographic Will
This is a hand-written Last Will that is valid provided it is entirely written by hand, signed and dated. There is no need to have an officer of the law witness it, or even register it with any authority, provided it is kept in a safe place. You can change it or re-write it at any time; you may send it to a lawyer for safekeeping.
2. The Will by Public Deed
If you want something that offers more security or formality, you can ask a notary to make a Testament in the official form, in the presence of two witnesses.
Anthony E. Braham
Contributor
You can also designate a lawyer or notary to act as your executor. This means he or she will supervise the opening of the Will, help your heirs with any legal or administrative matters and, if necessary, draw up an inheritance settlement.
3. The Inheritance Contract or Family Pact
This is a contract you make with your heirs in which you agree in advance what they will get. It is a reliable way of getting all your heirs to agree how your estate will be shared after your death, including any bequests to specific persons or charitable organizations. It cannot be changed unless all the signatories agree. It must be made before a public notary and witnessed.
4. The concept of mandatory heirs
In most Anglo-Saxon jurisdictions, you are free to decide to whom you give your Estate. In Switzerland, some family members are entitled to a share of your Estate no matter what. This is known as les reserves légales in French or Pflichteil in German. Reserved heirs are your children, your surviving spouse, and even your parents if you have no children.
It means that if you give your entire estate, for instance, to a charitable organization, when opening your Testament the Swiss probate authorities will check if you have a surviving spouse or descendants. If these legal heirs do not get their minimum legal entitlement, they could challenge your Will.
Which is why it is best to get professional advice from a lawyer (Avocat, Rechtsanwalt), even if you choose to write a hand-written Will.
5. Does Swiss law have to apply?
If you are a Swiss national and your last residence is in Switzerland, Swiss law will apply. If you have another nationality, you can choose to subject your Will to the laws of that country. In that case, you may need to consult a solicitor or lawyer who is competent in your own national law to draft your Will.
Whatever substantive law you choose, if your last residence is in Switzerland, Swiss law will apply to the probate process (opening of the Will). In most Swiss cantons, this is reasonably inexpensive and efficient, but there are some deadlines to be observed, and the technical terms can be bewildering, so it is best to get a lawyer to steer you through the process.
6. Living Will, advance directives and power of attorney
Living Wills or advance medical directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself.
If you are married with children, your next-of-kin are your spouse and descendants, so the medical authorities will ask them to make decisions on your behalf.
For all other matters, such as giving consent, managing your assets, or representing you in legal matters involving third parties, you need to write a specific document, known in Switzerland as the ‘advanced care directives’. This will give the person you choose the power to act on your behalf should you become physically or mentally incapacitated.
There are strict form requirements, similar to those of a Will.
If you have a life companion or non-married partner, this is often the best way to ensure he or she is not left out.
Here again, it is best to seek advice from a lawyer on the drafting and the content of these directives.
7. Where to get the best advice
In Switzerland, there are specialist lawyers (avocats) in the field of successions. Someone who speaks your language fluently is an asset. Notaries are needed to execute some deeds; however, because they are public officers, their practice doesn’t always extend to comprehensive advisory services.
An avocat can also advise on tax, property, and company law if your estate includes shares or participation in a corporation. Choosing a practitioner with a broad range of experience is a good way to ensure you cover all aspects of the planning and transfer of your Estate.
