Just when I thought we had this Swiss Testament (will) thing figured out... I hadn't reckoned with Pflichtteil (obligatory apportionment of the estate among certain relatives.)

We are US citizens, resident in Switzerland.

We wish that the entire estate should go to the surviving spouse; our US wills reflect that. From what I understand, Swiss law does not allow this - half must go to the children, or if there are no children, a quarter to one's parents.

I have heard, though, that as non-Swiss, we can avoid this by claiming Heimatrecht (rights according to one's home country laws), which would recognize our US wills as valid... Has anyone done this? How do we go about it - can we add a clause to a regular Swiss will (handwritten, or course ), or do I need to get an attorney involved?

And, how do I italicize a word in the subject line?

Very good question. It applies not just to Switzerland, but to everywhere. What happens if you die while in one country, while your will was written in another? Or if the surviving relatives are in a different country entirely. Which country would have jurisdiction in a dispute?

Surely there must be some sort of international agreement on this? What about when taxes come into play? Some countries tax inheritances...

P.S. I don't think you can do any formatting in the subject line - but thanks for trying (I tried too)

I think, that you can specify a Swiss will that references a UK or US will, which will be executed under the laws of the other country.

It's in my "Living and Working in Switzerland" book.

If you find out, I'd be interested...

You can indeed do this, however it is best to have a notar countersign it for you or have an American will written up to be applicable globally.

Actually the pflichtteil is a bit worse than it sounds unless you have children when you can act as your childrens guardian and decide on their behalf ie you keep the money. The pflichtteil can be at the insistence of the relative immediately payable which might, and I know cases where this has been the case, mean selling the house and there is B****er all you can do about it... And it actually drops down and back up the family tree ie if your parents are dead your brother or sister can land the money... Very similar system to Germany...

It also depends on where your assets are located, for example bank accounts or fixed property in a different country from where the owner resides - both inheritance tax and forced heirship are affected. Suggest you contact a law firm which can advise on this.

Thanks for the info, everyone.

So... when we moved here (long long ago) we amended our US wills to - hopefully - make them valid internationally. Thought that was done and dusted.

But as I look at it now, our will references US law, but does not specifically claim Heimatrecht (home country rights). Now I wonder if this is enough, should I happen to shuffle off this moral coil whilst living in Switzerland. Looks like I should go the Heimatrecht route to be on the safe side.

So, I write up the notice, have it signed by the Notary - is that all I have to do?

A few more questions - are assets held outside Switzerland affected by Pflichtteil (obligatory apportionment) as well? And, how about assets held in joint tenancy? I assume those would pass entirely to the surviving tenant, regardless of Pflichtteil?

And, if the relatives who would inherit under Pflichtteil are neither Swiss citizens nor residents, does any of this even matter?

Thanks.

Firstly you need to know that your will is viewed by the executor. They will then determine what goes where and the validity of the will. IF you have made your will globally applicable under American law then all is well. Switzerland does not have sole juristiction on the processes and rules involved with foreign nationals.

If your wills are made and written in English under American law then you need not use a notary. You only need to ensure that you reference these wills will fall under the sole juristiction of the laws of the US of A irrespective of the country of residence at the time of death, or the place of death.

With respect to Pflichtteil you should be aware that this is theoretically globally applicable however the assets in a foreign country fall often under some of the laws of that country so enforcing it is much more difficult. Imagine what a US court would say if your brother came along to a house your husband owned and said now he is dead I am entitled to a quarter...

The key point here is not the applicability of the law but the ability to enforce it, particularly in dispute, and that is extremely questionable.

If the items are in joint ownership then the value of the other half is determined as the part open for pflichtteil so no you are not totally free! This is sensible if you consider that this could be a business owned by two other unrelated people without being a share based ownership - ie partnership.

With your last comment you have hit the nail on the head. You see it is not only positive things ie assets that are subject to Pflichtteil but also debts so there is no obligation to take any of it on any relative... If they are not in Switzerland or Swiss nationals then more than likely it is irrelevant - but if someone knows ...

Does this apply to children from previous relationships as well?

Yes partly. There is a tree of dependency and based on this the estate is split. If you have children that are nothing to do with your spouse then they are entitled to your part but not that of your spouse, who of course might have his own children... - makes sense?

Yes it does, unfortunately

But we can get around this also by invoking this 'heimrecht' ?

Heimatrecht is basically a way of determining the law under which the will will be interpreted. If your legal system allows this then the answer is yes. You cannot, don't ask me why, choose under which law your will will be interpreted as with practically all other contracts you have two options here or home. I am also very unsure whether you can choose home if you are from two different countries or if you were married here. These are things I would need to check on.

Good news is there are some ways around parts of this... I will write more when I have time which is not in the next two weeks...

My wife and I are both dual nationals UK-Swiss and we own Swiss property. In reviewing wills recently here in the UK, we were advised that we needed Swiss wills to determine inheritance of Swiss housing. Can anyone give me pointers, advice, links etc?

We'll need to book in a lawyer I suppose when next over there.

Thanks,

Uncle

As UK nationals living here and owning property here, we were told that it is sufficient to have the clause about UK law applying within our wills. However, I understand that there have been some judgements within Canton Vaud that have overturned this and the position is very unclear currently.

Have a look at this post. I can put you in touch with the lawyer in Montreux who did this for us.

That is possible under Swiss law, but not through a will. It has to do with a "Ehevertrag". You need a lawyer/notar for this since that document has to be stored at your local court.

(Or something like that)

It is possible to benefit the spouse in the marriage-contract by selecting a specific matrimonial property regime. This affects everything that the couple earned during the marriage. Some details can be read here in German.

I'm in the same position as you and was told the same thing. I've emailed my lawyer and will let you know what he says.

I checked with my Swiss lawyer. They say say that the legal precedents haven't changed and that UK nationals cans still avoid obligatory apportionment by having the will subject to English law.

Even property owned in Switzerland?

I understand from a British friend, a property owner in CH, who has done it (but is not yet dead!!) that you can write your will and require it be probated under UK law. He recommends using a Notaire for this. In this way you can choose to avoid the "enforced heirship" that Swiss law requires.
However I am not sure what happens about estate/inheritance tax. If you go by UK law do you then make your estate subject to UK tax? Here in VS we have no estate tax so it is not something one wants to incur!!