WELCOMEto our common evening event and presentations about
Death and Inheritance in Switzerland
Dr. Roland BruhinAttorney at law and Notary, M.B.L.
Certified Specialist SBA Inheritance Law
Zug, 8th November 2016
Incapacity to act
What happens if you are no longer capable of judgement?
Death and Inheritance in Switzerland 2
Summary
1. The KESB
2. The Advance Care Directive
3. The Patient Decree
4. Legal Situation without Advance Care Directive / Patient Decree
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What is KESB?
KESB = Kindes- und Erwachsenenschutz Behörde
= Child and adult protection authority
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VORSORGEAUFTRAGThe Advance Care Directive
Art. 360 Swiss Civil Code
1 A person with capacity to act may instruct a natural person or legal entity to take
responsibility for his or her personal care or the management of his or her assets or to act
as his or her legal agent in the event that he or she is no longer capable of judgement.
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The Advance Care Directive
Execution
• Prerequisites: Full legal age and capable of judgement
• Holographic form → handwritten from beginning to end including date and signature
or
• Notarized by a notary public
• Possibility of entry in the Civil Register
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The Advance Care Directive
Coming into effect
• Loss of power of judgement with respect to the affairs stipulated in the Advance Care
Directive
• Validation of the Advance Care Directive by the KESB
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PATIENTENVERFÜGUNGThe Patient Decree
Art. 370 Swiss Civil Code
1 A person who is capable of judgement may specify in a patient decree which medical
procedures he or she agrees or does not agree to in the event that he or she is no longer
capable of judgement.
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The Patient Decree
Execution
• Prerequisites: Capable of judgement, full legal age not required
• Written form, dated and signed
• Possibility of entry on health insurance card
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The Patient Decree
Coming into effect
• Loss of power of judgement
• Attending doctor’s duty to ascertain existence of Patient Decree on patient’s health
insurance card
• Provisions of the Patient Decree are binding for the attending doctor
10Death and Inheritance in Switzerland
Legal Situation without Advance Care Directive
Art. 374 Swiss Civil Code
• Right of spouse to act as representative regarding legal acts required for usual support
and usual management of assets
• Right of spouse to open and deal with mail, if necessary
• Consent of Adult Protection Authority required for acts exceeding the ordinary asset
management
• If person is unmarried/divorced or spouse not suitable to act as representative
→ Adult Protection Authority will take measures respectively establish a deputyship
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Legal Situation without Patient Decree
Art. 378 Swiss Civil Code
Hierarchy of persons entitled to represent the patient and to grant or refuse consent to
planned medical procedures:
1. Deputy appointed by Adult Protection Authority
2. Spouse who cohabits with patient or regularly provides support
3. Any person who cohabits with patient and reguarly provides support
4. Descendants who regularly provide support
5. Parents who regularly provide support
6. Siblings who regularly provide support
12Death and Inheritance in Switzerland
Last Will / Contract of succession
Death most often comes unexpected.
What, if there is neither a last will nor a contract of succession?
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Example
14
Marissa
(Dutch
citizen)
Paul
(US-
citizen)
Jim
Death and Inheritance in Switzerland
What was the situation?
15
• Paul was not married but happily allied with Marissa, both of them living and working in
Switzerland based on seperate staying permits
• The two of them have had a common son called Jim
• Paul died in Switzerland and left neither a last will nor a contract of succession
• There were assets of the deceased in Switzerland, the Netherlands and in the USA
• For some bank accounts and insurances Paul had appointed Marissa as a beneficiary
Death and Inheritance in Switzerland
What happened?
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• The Child and Adult Protection Authority (KESB) has established a deputyship for Jim and
appointed a lawyer as the deputy
• Marissa no longer was allowed to dispose of assets of the deceased or of Jim
• It was not clear which assets, if any, belong to the estate
• It was not clear which law was applicable, and if there is, if any, a statutory entitlement
• It was not clear whether Paul intended to appoint Marissa as a beneficiary for the estate
From a pure Swiss point of view son Jim was the only heir
• The deputy had to initiate a probate proceedings in the USA
Death and Inheritance in Switzerland
What could have been avoided?
17
• Paul could have disposed of his assets in a last will or in a contract of succession to
determine who the heirs are and, to what extent
• He could have determined which law will be applicable
• He could have appointed an executor
Death and Inheritance in Switzerland
Death and Inheritance in Switzerland How to make dispositions
MLaw Christophe Raimondi, LL.M.Attorney at law and Notary
Zug, 8th November 2016
Summary
In a nutshell
How to make dispositions under Swiss law
• Last Will (Testament)
• Contract of Succession
Amendment and revocation
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In a nutshell
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Testamentary Dispositions
Last Will (Testament)
unilateral act
Contract of Succession
agreement
Last Will (Testament)
A will may be established (i) by public deed or (ii) in holographic form…
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Public Deed
Prepared by a Notary
Holographic Will
Entire document handwritten, dated and
signed by testator
Pro
s
• Higher legal certainty, lower risk of
being challenged (validity +
content)
• Better recognition by foreign
authorities
• Nobody else required, might be kept fully
secret during a lifetime
• Does not entail any costs
Co
ns
• More time-consuming
• Costs in Zug approx. CHF 1‘500 –
2‘000
• Higher risk of being challenged
(ambiguous wording)
Contract of Succession
Contract between two or more persons in which at least one person commits him-/herself in his/her lifetime either by
- (a) renunciation of inheritance (with or without valuable consideration), or
- (b) provision of benefits between living persons, i.e. via a nomination as heir (extensive) or the passing on of a legacy (limited)
(same formal requirements as a last will by public deed – contact your Notary)
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Pro
s
• Possibility to clarify issues directly, in advance and exhaustively with the co-/heirs
• Possibility to agree on a consideration for the renunciation or the provision of benefits
between living persons
Cons • Requires the involvement of co-/heirs
• More time-consuming than a Last Will, costs in Zug approx. CHF 2’000 – 3’000
Amendment and revocation [1/2]Last Will
The testator may amend/revoke his Last Will anytime/in full or in part…
How?
• Directly on the public deed/document
• By destruction of the public deed/document
• Through a new Testamentary Disposition (by public deed or as holographic will)
Mind the form - at least holographic will!
Keep new disposition clear and unquestionable
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Amendment and revocation [2/2]Contract of Succession
A Contract of Succession may be amended (new contract – public deed) or revoked
(written agreement – no public deed) at any time by agreement between the parties…
Exceptions (unilateral termination or termination by operation of law)
• Heir’s/legatee’s conduct toward the testator constitutes a ground for disinheritance
• In case of provision of benefits between living persons, failure to perform or to furnish security for them
• Where the heir/legatee does not survive the testator (unless other provision in the contract)
• In case of divorce (unless other provision in the contract)
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Death and Inheritance in Switzerland Estate Planning Possibilities
Dr. Stefan KlassAttorney at law and NotaryCertified Specialist SBA Inheritance Law
Zug, 8th November 2016
Death and Inheritance in Switzerland
Overview
1. Matrimonial property regime
2. Essentials of estate planning dispositions
3. Cross border issues
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Matrimonial Property Regime 1
Death of a married person
• Dissolution of the matrimonial property regime as first step
• Each spouse gets its quota according to the agreed matrimonial property regime
• Quota of the deceased spouse forms its estate which is then distributed according to the
rules of the inheritance law
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Matrimonial Property Regime 2
Cross border issues
• Applicable regime in international situations
to be determined on a case-by-case basis
• Choice of the applicable law possible
even with retroactive effect
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Matrimonial Property Regime 3
Matrimonial property regimes according to Swiss law
1. Separation of Property
2. Participation in accrued Gains
3. Community of Property
Matrimonial agreement of spouses
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Matrimonial Property Regime 4
Participation in accrued Gains
• Individual property of each spouse
• property at marriage
• gifts and inherited property
• personal belongings
• Gains accrued during marriage
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Matrimonial Property Regime 5
Planning Opportunities
• Accrued gains may be split other than 50:50 IF there are only common descendants
• The entire value of the accrued gains may be granted to the surviving spouse
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Essentials of Estate PlanningDispositions 1
Wills and contracts of succession
• Allow individual solutions
• Choice of home law
• Executor
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Essentials of Estate PlanningDispositions 2
Freedom of Testation
• Freedom of testation as guiding principle
• Limitations by statutory entitlement (“Pflichtteil”) rules
• May be waived by protected heirs
• Choice of home law without statutory entitlements
is recognized under Swiss law
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Essentials of Estate PlanningDispositions 3
Statutory entitlement
• Step 1: calculation of entitlement of relatives or the surviving spouse as if no estate planning disposition
had been drawn up
• Step 2:calculation of statutory entitlement which is
75% for descendants
50% for parents
50% for surviving spouse
• Rest of estate may be granted to third persons
• Calculation in CHF, all items of the estate
valued at fair market prices
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Essentials of Estate PlanningDispositions 4
Example
• Husband dies, leaves mother, wife and 2 children
• Step 1:
0% for mother
50% for surviving spouse
50% for the 2 children
• Step 2, calculation of statutory entitlements:
25% for surviving spouse (50% of 50%)
37.5% for the 2 children (75% of 50%)
37.5% available for grants to third persons
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Essentials of Estate PlanningDispositions 5
Outlook:
• Reduction of statutory entitlements of spouse and descendants possible in upcoming
amendment of Swiss inheritance law
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Cross Border Issues 1
Principles of jurisdiction
• One single estate including all assets worldwide
• Splitting of estates possible regarding foreign real estate
• Courts and administrative authorities of last domicile in Switzerland have jurisdiction over
probate proceedings and inheritance disputes
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Cross Border Issues 2
Governing law
• Competent Swiss Courts and administrative authorities apply their own procedural rules
• Swiss wills and contracts of succession are subject to Swiss law
• Foreign nationals (not in case of dual citizenship) may choose to apply their home law for
their entire estate
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Cross Border Issues 3
Existing wills drawn up under foreign law
• Remain valid if validly drawn up under foreign law
• But: valid choice of home law?
• But: dealing with assets in Switzerland?
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Cross Border Issues 4
EU Succession Regulation
• Applies to successions after August 17, 2015
• Not applicable in the UK, in Ireland and Denmark
• Likely conflict of jurisdictions if assets in the EU combined with EU citizenship, also for
UK, Irish and Danish nationals
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