Dear grandpa
There is always a place for you on the swing by the balcony.
Do you have any questions?
Are you asking a personal question?
The portal bestatter.ch answers all your questions about funerals and funeral provisions.
Inheritance and will
There are countless questions about inheritance or wills. For final clarification, it is essential that you consult a specialist.
Many members of the Swiss. Association of Funeral Services SVB note that misconceptions and assumptions often lead to problems. Many things can be prevented if the questions are clarified during one’s lifetime and solutions are sought with professionals.
Very often it happens that cohabiting couples and partners do not know what disadvantages may arise in the event of death. Consultation is especially important for you.
Find the right funeral director
The Swiss funeral portal.
Is a registered partnership treated the same as a marriage?
Yes (Art. 462 CC).
Inherits also a life partner / cohabitant
Only those who were in a marriage or registered partnership with the deceased also inherit. Merely being a “partner” is not enough for him or her to automatically inherit by operation of law. Of course, the later testator can provide for a different arrangement by will or inheritance contract and favor the partner therein.
Do the assets from the 3rd pillar belong to the estate?
Basically yes.
In Pillar 3a, the persons who are taken into account are fixed. The law provides that the spouse comes first. In the second place, you can name your cohabiting partner as beneficiary, even if there are children.
Moreover, you can assign them different quotas. You can determine the order in which parents, siblings and other heirs are to be beneficiaries. Those who wish can assign different quotas to these heirs.
If the 3a payout violates compulsory portions, the beneficiary must make compensatory payments to the other beneficiaries of the compulsory portion. This happens especially when the deceased person leaves few assets other than the 3a assets.
What is a contract of inheritance?
An inheritance contract is a different way of disposing of property than a will (testamentary disposition). In the case of an inheritance contract, the testator undertakes to another person to leave that other person or a third party a portion of the assets. The contract of inheritance cannot be unilaterally amended again, as is the case with a will.
What are the legal rights of inheritance?
The statutory inheritance rights apply if no disposition upon death (will or contract of inheritance) has been made. They indicate which surviving descendant receives how much of the deceased testator’s estate. They also regulate what happens if a legal descendant (e.g. the child of the testator) has already predeceased the deceased.
The statutory inheritance rights amount to the following fraction according to Art. 457 ff. ZGB, the following fraction of the assets:
Art. 457 CC
Para. 1: The next heirs of a decedent are his descendants.
Para. 2: The children inherit in equal shares.
Para. 3: Predeceased children are replaced by their descendants, in all degrees by tribe.
Art. 458 CC
Para. 1: If the testator leaves no descendants, the inheritance goes to the parent’s tribe.
Para. 2: Father and mother inherit by halves.
Para. 3: The predeceased father or mother is replaced by their descendants, in all degrees by tribe.
Para. 4: If there is a lack of descendants on one side, the entire inheritance falls to the heirs of the other side.
Art. 459 CC
Para. 1: If the deceased leaves neither descendants nor heirs of the parental tribe, the inheritance passes to the tribe of the grandparents.
Para. 2: If the grandparents of the paternal side and those of the maternal side survive the testator, they inherit on each side in equal shares.
Para. 3: A predeceased grandfather or grandmother shall be replaced by their descendants, in all degrees by tribe.
Para. 4: If the grandfather or grandmother on the paternal or maternal side is predeceased, and there are also no descendants of the predeceased, the whole half shall go to the existing heirs on the same side.
Para. 5: If there are no heirs on the paternal or maternal side, the entire inheritance shall go to the heirs on the other side.
Art. 460 CC
With the trunk of the grandparents, the right of inheritance of the relatives ceases.
However, Art. 462 of the Civil Code must always be observed:
Surviving spouses and surviving registered partners receive:
Digit. 1: if they have to share with descendants, half of the inheritance;
Digit. 2: if they have to share with heirs of the parental tribe, three-fourths of the inheritance;
Digit. 3: if there are also no heirs of the parental tribe, the whole inheritance.
May I change an existing will?
Yes. However, anyone who wants to do this must take good care to ensure that the old injunction is destroyed.
What is an emergency will?
A nottestamten is an oral will. This is only possible in exceptional circumstances and only in very exceptional cases. It also happens rarely. Extraordinary circumstances are listed in the law, for example (Art. 506 CC):
- Near danger of death
- Traffic block
- Epidemics
- War events
Furthermore, it must not be possible for the testator to use another form of the will.
What should be considered when making a handwritten will?
The handwritten will must be written by hand in its entirety and must also be signed by hand. It must also be dated.
What is a will?
A will is a unilateral legal transaction to which only the testator / testatrix is party. It can be amended, annulled and revoked at any time during his lifetime.
With a will, the estate can be provided for in deviation from the law – as long as no compulsory portions are violated and the legal minimum standards are observed.
In principle, only the options of the handwritten and the public will come into question, only exceptionally the oral will as an extraordinary variant.
What is an estate plan?
The concept of estate settlement includes all the ways of regulating the fate of the inherited property.
Either the will or the contract of inheritance come into question for this purpose.
What is an execution of will?
An execution of a will (better: execution of a will) is executed by an executor (see for the term: “Who is an executor?”).
In doing so, he/she is instructed to administer the estate, the inheritance assets and to comply with and enforce the provisions made in the disposition of death (e.g. will).
The purpose is basically to ensure the quick and reliable execution of the ordered measures, legacies and division regulations. The execution of the will is intended to provide assistance to descendants.
What do survivors need to do?
Depending on the place of residence of the deceased person, the next of kin must report a death within 2 days to the following authorities, although very often and depending on the locality this is done by the mortician:
– the civil registry office of the place of death or
– the burial office at the place of residence of the deceased person. These subsequently inform the civil registry office.
Provide the following documentation (if available):
- Medical death certificate
- Notification of the death
- Writ receipt / family booklet
- Identity card / passport
- Settlement permit / residence permit (for foreigners).
The death of foreign persons without residence in Switzerland must also be reported to the civil registry office at the place of death. The civil registry office will provide information about the required documents.
After the funeral/burial:
- Dissolve marital property: before the inheritance is divided, the assets brought into the marriage or purchased during the marriage (furniture, real estate, money, securities) and debts are divided between the two spouses.
- Settle the inheritance (Depending on the last place of residence of the deceased person, the procedure for distributing the inheritance and the authority responsible for this varies. The authorities of the canton of residence in which the deceased person was registered will inform you about the procedures):
- Dissolve budget
- Distribute household goods among heirs, unless there are provisions in the will.
- Prepare inventory of real estate, collections, jewelry and vehicles for distribution of inheritance.
- Cancel apartment, clear and clean.
- Social and insurance benefits for surviving dependents
- Clarify claims to widow’s, widower’s or orphan’s pensions (AHV/IV),
- Clarify claims to supplementary benefits to AHV/IV and cantonal aid,
- Clarify entitlements to welfare benefits,
- Clarify claims to survivors’ pensions with the employer (BVG),
- Clarify insurance policy/life insurance claims.
- Secure personal documents of the deceased person from the residence,
- Revoke powers of attorney with banks,
- Cancellation and claiming of any benefits from insurance companies (health insurance, household contents, accident and life insurance, etc.),
- Inform bank and post office, order statements by date of death,
- Contact employer regarding clarification of claims for continued pay, death benefits, severance pay,
- Cancellations of subscriptions and memberships to clubs and associations,
- Prepare tax return per date of death,
- Deregistration with the AHV/IV compensation fund,
- Inform road traffic office.
What should be considered when making a gift?
In the case of a gift, the donor must be capable of acting.
On the other hand, the donee does not necessarily have to be capable of acting, but at least capable of judgment.
The donation can be made “hand to hand” and thus informally. It takes place through the physical handover of the object by the donor to the donee.
In contrast, a promise to make a gift must be agreed in writing in order to be valid.
Marital property law and inheritance law in particular set the legal framework and thus also the limits for a gift: In connection with an inheritance, the explanations on the subject of “advance inheritance” must be observed.
What is an advance inheritance?
Under Swiss inheritance law, an advance withdrawal from an inheritance is a type of gift (see on gifts below). An advance inheritance is a gratuitous transfer of assets during the lifetime of the testator.
In this context, it is particularly important to note that an advance inheritance is generally subject to “equalization”. In concrete terms, this means that an heir who has received an advance withdrawal during his or her lifetime must have this deducted from his or her share of the inheritance in the event of death. Accordingly, he or she then receives less of the inherited assets at the time of death.
What is the meaning of disclaiming an inheritance?
A disclaimer means that the person disclaiming the inheritance does not wish to participate in the assets of the deceased. It does not receive any assets, but in return it does not pay any debts / liabilities.
The declaration of rash must be unequivocal, unambiguous and unconditional. In principle, it is also irrevocable.
It is important that the disclaimer is made within a period of three months from the date of knowledge of the death (for the legal heirs) and three months from the date of knowledge of the appointment of the heir (for the appointed heirs).
A disclaimer makes sense in particular if the inheritance is overindebted, i.e. has more debts than assets.
What are sealing officers?
Sealing officers are those persons who perform a sealing.
The president or a member of the municipal council is responsible for sealing. However, it may also be that these tasks have been handed over to another management body.
When is sealing performed?
A sealing must be made in every case of death (few exceptions).
What are inventory clerks?
The inheritance inventory (see, “What is an inventory”) is drawn up by a notary public entered in the register of notaries public of the Canton of Bern and should contain as accurate a list as possible of the objects of the inheritance with valuation and the obligations encumbering the inheritance (Art. 61 EG ZGB of the Canton of Bern).
What is an inventory?
An inventory in connection with an inheritance is a kind of “security device”. It is a means of security in order to be able to ensure the legally correct inheritance (Art. 551 para. 2 CC).
“Inventory” means the inventory of the property belonging to the estate of the deceased.
The inventory is usually done as a preliminary step to sealing (see, “What is sealing”).
In the case of inheritance, what should be known if a child never had contact with a deceased parent?
The child shall nevertheless inherit to the extent of his or her legal right to inherit, or if the deceased person has placed him or her on the compulsory portion, to that extent. Disinheritance can only be effected under strict conditions (Art. 477 CC):
The testator is authorized to deprive an heir of the compulsory portion by a disposition of death: Sec. 1: if the heir has committed a serious criminal offense against the testator or against a person closely related to the testator;
Digit. 2: if he has seriously violated the family law obligations incumbent on him towards the deceased or one of his relatives.
What is death benefit insurance?
Death benefit insurance is a term insurance policy that guarantees immediate benefits to beneficiaries in the event of death. The subsequent testator is free to choose whom he or she wishes to benefit and whether the beneficiaries receive a fixed capital sum or an annuity. In the case of capital, the subsequent testator / testatrix can agree not only a fixed sum, but also one that decreases annually.
Do the assets from the 2nd pillar belong to the estate?
The answer to this question is complex and depends on the pension fund institution in question.
By law, pension funds are not obliged to pay out the money to the remaining heirs.
However, many insurance funds voluntarily provide for a one-time lump sum to be paid out upon the death of the insured person. The pension fund regulations specify who receives this credit. For example, if a single person without children dies, the money usually goes to their parents or siblings.
However, as mentioned, it is important to note that this is regulated on an individual basis. Information is provided to the dependents by the pension fund.
In addition to their pension fund, many employed persons have further assets in the 2nd pillar, in vested benefits accounts or policies. Vested benefits are passed on to the legal heirs after the death of the holder.
What is the freely available quota?
The freely available quota is the difference between the statutory inheritance entitlements and the compulsory portions.
Example:
A father dies leaving a child and a wife and assets of CHF 100,000.00. The legal inheritance rights are: 50% wife (= CHF 50’000.00, art. 462 Ziff. 2 ZGB), 50% child (= CHF 50’000.00; art. 457 ZGB). If the deceased places the child on the compulsory portion, Art. 471 of the Civil Code must be observed. The child receives 75% of his 50% legal share of the inheritance, i.e. 37.5% (= 3/8) instead of 50% (= 4/8) of the total estate assets (Art. 471 No. 1 ZGB = compulsory share). This means that 12.5%
(= 1/8 (4/8 – 3/8)) of the total estate of the deceased free (25% of 50% = 12.5% = freely available quota). If the deceased also places the wife on the compulsory portion, she receives 50% of the 50% statutory inheritance entitlement, i.e. 1/4 instead of ½ of the total estate assets (Art. 471 No. 3 CC = compulsory portion). Thus, ¼ of the total estate of the deceased becomes free (50% of 50% = 25% = freely available quota). In this example, therefore, 37.5% of the total estate of the deceased becomes free and he can dispose of it as he wishes. The rule of compulsory shares, which is important in inheritance law, is not thereby violated as seen, because he has placed his heirs on the compulsory share.
What if there is no will?
If there is no will and no other testamentary disposition (e.g. contract of inheritance), the statutory provisions apply in full (e.g. statutory inheritance rights).
Can I keep a will at home?
Public wills must be kept in a designated office.
In principle, handwritten wills can also be kept at home.
For the sake of legal certainty, however, it makes more sense in any case to submit wills or inheritance contracts to a public institution. The cantons are even required by law to designate such bodies. In most cases, this refers to notaries public, who are also authorized to keep wills safe.
What is a public will and what must be observed?
A public will is drawn up with the assistance of two witnesses before the official, notary or other person authorized to do so under cantonal law (Art. 499 ZGB). Unlike a handwritten will, the disposition of property upon death is not made in writing by hand. The idea is that a testator who can no longer read or write can still draw up a will with the help of a civil servant.
There are two types of public wills:
- The notary submits a prepared document (will) to the testator. The testator reads the document him/herself and signs it. The witnesses will be called in after the signing.
- The notary reads the document (will) to the testator. Here the signature is not necessary. The witnesses must be here from the beginning.
Why does it make sense to make a will?
The law provides for settlement of the estate when a person dies. However, this legal regulation is only intended as a fallback solution. However, during their lifetime, all can provide for a regulation that deviates from the law (with the exception of compulsory shares; including counter-exceptions).
If a person does not want the (entire) statutory succession to take effect, the estate can be settled by a will in deviation from the law – provided that no compulsory portions are violated and the statutory minimum standards are observed.
What are the types of wills?
- Handwritten will
- Public will
- Oral will
Who is the executor of the will?
The executor is the person capable of acting (= capable of judgment and of full age) who was designated as such by the testator in the testamentary disposition (Art. 517 CC). One or more persons may be appointed as executor(s) of the will.
According to the text of the law, the appointment has to be made by testamentary disposition, but is probably also possible by contract of inheritance (controversial). But what is not possible is that the execution of the will is already concluded by an inter vivos contract.
The executor is entitled to remuneration.
What notices do survivors have to give?
- Dissolve budget.
- Cancel apartment, clear and clean.
- Revoke powers of attorney with banks.
- Cancellation and claiming of any benefits from insurance companies (health insurance, household contents, accident and life insurance, etc.).
- Cancellations of subscriptions and memberships to clubs and associations.
- Deregistration with the AHV/IV compensation fund.
Do I pay for a funeral/burial for my parents even if I inherit?
In the first place, the debts of a deceased person, as well as the costs of burial and settlement of the estate, are to be borne from the funds of the inheritance. This does not give rise to any difficulties if the testator has sufficient financial means and therefore the estate is also correspondingly solvent.
If the estate lacks the means to repay the debts, the heirs have the option to disclaim the inheritance and thus avoid personal liability for the debts of the estate. The exclusion of liability applies without restriction to the decedent’s personal debts and inheritance debts, but only to a limited extent with regard to funeral expenses.
According to a Federal Court decision, the obligation to support relatives under civil law continues to apply after death and obliges relatives to bear the funeral costs even if the inheritance is disclaimed. The law provides for a hierarchy that primarily obligates the husband or wife (today also the registered partner). Then, in the second line, the relatives in the descending line, i.e. descendants, and in the ascending line, i.e. ancestors, are liable to support, the nearer relatives excluding the more distant ones. The group of persons obliged to provide support is not necessarily identical with the heirs.
The assumption of funeral costs by the municipality is thus regulated in the respective municipal regulations.
What is a gift (Art. 239 ff. ZGB)
A gift is a gratuitous donation inter v ivos (Art. 239 CO) without any consideration. In contrast, a mixed gift can also be made (e.g. if something is sold far too cheaply with the intention of making a gift).
What is a renunciation of inheritance or a disclaimer?
The renunciation of inheritance means the renunciation of the inheritance during the lifetime of the later testator / testatrix. In such a case, the actual heir and the subsequent testator agree that the actual heir waives the right to claim his/her share of the inheritance at the time of the inheritance.
What is an inheritance service?
When a death occurs, you have to take care of many things as a family member. In many cases, the first point of contact for assistance is the inheritance service in the region where the deceased person was registered. Often, the probate service will contact the next of kin.
One of the first tasks of the probate service is to prepare a sealing protocol (see above).
Am I not allowed in the apartment after sealing?
If the entire apartment, or an entire property is sealed, access to it is prohibited. Breaking a seal can be punished by up to three years imprisonment under Art. 290 StGB.
What is (sealing)?
In the case of a seal, an official seal is applied to the estate objects. This is also a security measure. It is intended to prevent physical intervention in the estate. In other words, it is intended to prevent the estate or the object/asset from being taken away, altered, destroyed, concealed, or the like. (see also Art. 58 EG ZGB of the Canton of Bern).
Breaking a seal (i.e. acting against a seal) is an official offense and is punishable by up to three years imprisonment under Art. 290 StGB.
Further, a sealing protocol is filled out.
When is an inventory taken?
The taking of an inventory is carried out ex officio (Art. 551 para. 1 CC).
In the Canton of Berne, the taking of an inventory is ordered in accordance with Art. 60 EG ZGB of the Canton of Berne:
- if an heir is to be patronized or is under guardianship;
- if an heir is permanently absent without representation;
- if one of the heirs requests it;
- if the father or mother has died and there are minor children.
Can I create an advance directive myself?
Yes. See for further discussion, “Who Draws Up the Health Care Proxy?”
What is the role of the child and adult protection authority?
Without the Kesb, there would be no advance directives – and vice versa. Authority and advance directives are two cornerstones of adult protection law. Before an advance directive comes into force, the Kesb must check that everything has been correctly and completely recorded. Consideration is also given to whether the person making the provision is capable of caring for the other person.
If everything is in order, the appointed person receives a document stating what the now incapacitated person has determined. Homes, banks and insurance companies and other partners must accept this certificate issued by Kesb.
How long is the advance directive valid?
On the one hand, the advance directive is valid as long as the principal is incapacitated. If she regains judgment, the contract is suspended.
On the other hand, the appointed person may terminate the advance directive at any time by giving two months’ notice in writing to the adult protection authority. It may terminate the contract without notice for good cause.
What is the difference between a health care proxy and a (health care) power of attorney?
The advance directive only becomes valid if the person making the directive becomes incapacitated.
The health care proxy in its form no longer exists. On the other hand, powers of attorney can be issued in the form of general or special powers of attorney. In this context, the representation of the person granting the power of attorney may last beyond the incapacity to judge, or even occur earlier. The power of attorney can, for example. also provide that business shall be conducted by the authorized person with immediate effect, and shall continue to apply during the period of any incapacity for judgment. This makes sense especially if the person granting the power of attorney, for example. had an accident and is therefore absent from home for a longer period of time.
Can an advance directive be revoked?
Yes. However, this requires compliance with the formal requirements that also apply to the establishment. This means that the advance directive must either be revoked in full by hand or the revocation must be publicly certified.
Alternatively, the old advance directive can also be destroyed.
If a person draws up a new advance directive without expressly revoking the old one, the new one is presumed to replace the old one if the new one is not merely an addition to the old one.
Does an advance directive make sense for married couples?
Yes. For example the simplest day-to-day correspondence is handled by the appointee / appointee. This is because the commissioner is not simply authorized to do so.
Who can be designated as an agent?
A natural person or legal entity may be entrusted with the execution of the pension order.
Who creates an advance directive?
The advance directive is drawn up by the person who may become incapacitated at a later date. It must be drawn up by hand or publicly notarized.
What does an advance directive contain?
An advance directive can be designed very flexibly according to the needs of the client. It may be stipulated that the representative may act on behalf of the principal as a whole, or only in individual areas (administration of income and assets, sale of property, medical decisions, care and support, etc.).
In addition, you can give instructions about how to perform the tasks.
What if there is no advance directive?
In this case, your next of kin will be faced with the management and task fulfillment of all issues that arise. This can lead to very stressful and complex situations for family members.
Is an advance directive also necessary with a power of attorney?
As stated in the question “What is the difference between an advance directive and a power of attorney?”, the power of attorney also regulates the performance of transactions by a third party if the person making the directive is capable of judgment. This period is not covered by the advance directive. From this point of view, it makes sense to issue one or more powers of attorney in addition to an advance directive, which only takes effect later, if the person making the directive feels more secure as a result. This can also be done for reasons of convenience, excessive demands or the like.
When does an advance directive become effective?
If the adult protection authority learns that a person has become incapacitated and does not know whether an advance directive has been issued, it inquires at the civil registry office. It then checks whether the advance directive was validly drawn up. If the appointed person then accepts the advance directive, he or she is instructed by the authority on the content of the directive and is handed the advance directive.
If the person placing the order regains capacity, the advance directive loses its validity by operation of law.
Where can an advance directive be kept?
Upon request, the civil registry office enters the fact that a person has established an advance directive and the place of deposit in the central database.
What if no representative has been designated?
The designation of the representative, i.e. the person who is to execute the advance directive, is a validity provision. If the contract does not specify who is the representative, the order is not valid.
The substitute person must be recognizable at least by the wording / order.
How is an advance directive drawn up?
The advance directive is either drawn up in person (written down by hand from beginning to end, dated and signed) or with a public notarization.
What is an advance directive?
An advance directive can be used to designate one or more persons of trust as a precautionary measure in the event of an advance directive being issued at a later date. The term “precautionary case” is used when, as a result of an accident or serious illness (e.g. dementia), someone is no longer able to make legally binding decisions for health reasons. By appointing a health care proxy, provisions are made to ensure that the person’s claims and concerns are also enforced in the event of a pension.
What is a living will?
In an advance directive, a person with capacity can specify which medical measures he or she consents to or does not consent to in the event of his or her incapacity.
How do I create a living will?
Creating a living will takes time. It is worthwhile to think about it, to become aware of one’s own will and to include one’s own environment in the process.
The living will must be made in writing, dated and signed. It must be established by the disposing person himself, and cannot be established by a third party. Subsequently, it can also be deposited.
Electronic forms, which are freely available on the Internet, are recommended for their establishment.
It is important to note that the will of the person making the order must be clearly expressed, so that there is no room for maneuver regarding medical measures to be carried out or not.
In an advance directive, a person expresses his or her personal wishes to doctors and caregivers in the event that he or she is no longer able to express an opinion on treatment.
He records how he would like to be cared for and accompanied in his final phase of life and how he would like the farewell to be.
In terms of content, the living will primarily regulates two issues: On the one hand, the use of life-prolonging measures. This includes water and food administration, ventilation and resuscitation. Depending on the situation, decisions must also be made about oxygen supply, medication, transfusion, dialysis and surgical interventions