Succession planning Writing a will: reasons and rules
A will clearly states what should happen to your estate when you’re gone. Read on to find out what you need to consider.
Your will stipulates who should receive a share of your estate. Depending on your family situation, you are not completely free to decide who gets what. If you are not married, you only need to consider inheritance law, which stipulates that close relatives must receive a compulsory share. If you are married, matrimonial property law stipulates how much of the existing assets your spouse is entitled to receive.
It’s best to draw up a will as early as possible so that it is available in the event of emergency, so that your estate is divided up as you wish and your relatives are clear about your intentions.
Another argument in favor of drawing up a will or reviewing an existing one is the revised inheritance law which will come into force at the beginning of 2023. As part of the revised law, the compulsory share for children will be reduced from 75 to 50% and that of the parents eliminated completely.
What a will can stipulate
What a will can stipulate
A will can determine much more than just the shares of your estate:
- Apart from the statutory compulsory shares, you can also appoint heirs at your own discretion. These can also be associations or foundations. If there are no legal heirs or a will, your estate will go to the state.
- You decide who receives which material goods. If a particularly valuable object is allocated (often a house), the person who receives it may have to pay off other heirs if the remaining funds in the estate are not sufficient.
- You can also bequeath a certain item, a sum of money, a right of residence or a pension to someone as a legacy. This person is then not part of the community of heirs.
- If you are married, you can stipulate a usufruct in your will. This ensures that your spouse can use a property, securities or objects for life (or until a certain point in time, such as if they enter a nursing home), even if the other heirs actually own the assets. However, remember that usufruct also gives rise to (financial) obligations. These can range from income and wealth taxes, administrative costs and mortgage interest to the maintenance of a house.
- An executor appointed in the will regulates all necessary administrative matters, thus relieving the heirs from this responsibility. An executor can sometimes also prevent conflicts.
- You can disinherit a person, i.e., deprive them of their compulsory share. However, this is only possible under certain circumstances, such as violation of family law obligations, and should be legally clarified in order to prevent a (successful) challenge to the will.
Two common forms for a will and one for emergencies
Two common forms for a will and one for emergencies
The law clearly states how a will is to be drawn up. First and foremost, the law distinguishes between a handwritten and a public will.
You write the former yourself and can also change or revoke it at any time. You must be at least 18 years old and mentally competent to make your own decisions.
A public will is written by an authenticator – often a notary, though regulations and costs vary from canton to canton – with the involvement of two independent witnesses. This gives you the certainty that the will is formally and substantively correct. In case of doubt, you can have a handwritten will checked by a notary.
In exceptional circumstances, the law also recognizes a verbal will. Exceptional circumstances are those in which the testator is unable to draw up a handwritten or public will – primarily in the event of risk of death due to illness, accident or war. The last will must be communicated to two independent witnesses who put the will on record at the nearest court immediately afterwards.
Points to remember when drafting a handwritten will
Points to remember when drafting a handwritten will
- As the term “handwritten” suggests, the will must be drafted entirely by you and by hand, dated and signed. A will written on your computer or typewriter is not valid.
- A will is only valid for one person at a time. Swiss law does not recognize joint wills: even in a marriage or registered partnership, each person must write their own will.
- Insert the word “Will” as the title of the document.
- Add your full personal details: first name(s), last name, date of birth, citizenship.
- Revoke all previously written wills.
- Items and assets to be inherited should be described as clearly and unambiguously as possible.
- Designate heirs and beneficiaries (both persons and institutions) with as much information as possible, including their names, addresses and dates of birth. A separate address list is helpful for probate proceedings.
- If necessary, consider rules for the division of an inheritance for certain estate objects such as real estate.
- You can also determine who should inherit if your beneficiary heirs have already died when the will is opened.
- If you wish, you can name an executor.
- Finish your will by indicating the place and date as well as your signature.
- Note that requirements for burial do not need to be included in a will, as wills are often only found or opened afterwards. A patient decree (living will) is a better option here.
What if you change your mind?
What if you change your mind?
A will is for your estate, but not for eternity. Your will may change, appointed heirs may no longer be alive or inheritance laws may be revised, such as on 1 January 2023. You should therefore review your will regularly, for example every five years.
Changes or additions can also be made to a handwritten will. The same requirements apply as for the will itself. But if, for example, you decide to bequeath your painting collection to your niece instead of your nephew, the nephew will not be informed of the change until the opening of the will. A new will is also advisable if there are many changes which would otherwise make it difficult to keep track of things.
If you write a new will, then either all previous wills including copies must be destroyed or you must revoke the previous versions in the new will.
Cohabitation and same-sex partnerships
Cohabitation and same-sex partnerships
The Partnership Act ensures that same-sex couples are treated equally to heterosexual couples in terms of inheritance quotas and compulsory shares. It means they do not pay inheritance taxes, which in most cantons also applies to their descendants.
Cohabitation, on the other hand, is not taken into account either in matrimonial property law or in inheritance law. Couples who are not married or in a registered partnership must therefore draw up a contract about joint property, taking into account any compulsory shares when drafting their will. They are also not exempt from gift and inheritance tax.
From storage to execution
From storage to execution
A will needs to be easily findable after someone dies. It is therefore especially important that it is stored securely and adequately. At home it can be lost, a bank safe is locked after a death. Although any person who holds a will of a deceased person is obliged to submit it to the authorities, the ideal place to store a will is with the official bodies present in each canton.
Although you express your final wishes in a will, these do not have to be followed in every case. A person may refuse an inheritance if, for example, they are worried that the debts incurred will be higher than the inheritance. The heirs can also unanimously agree on a different allocation of the estate. If possible, you should therefore not only record your final wishes in the will itself, but also communicate it verbally to the persons concerned at an appropriate time.
