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Old 13.12.2017, 09:56
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Help with inheritance laws

Hello :

My sister (nationalized swiss) passed away with no descendants or partner.
From our family, we have a predeceased father, my mother and another sister.

Before dying she prepared an will where the assets are divided between my mother and me ( not equally). She did not made any mention to the sister on the will.

The court has prepared the certificate of inheritance and my sister, my mother and me are listed there, forming this way the community of heirs.

My surviving sister is not willing to sign on the present conditions. Does she have any rights to inheritance (as an heir to my predeceased father?)

Can she request part of the inheritance in court? what are the possible actions when the community of heirs is on a deadlock?

Best regards,

Fvn
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Old 13.12.2017, 11:15
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Re: Help with inheritance laws

Your mother has a claimable right to 25% of the overall estate. That's all of it.
The sister has no right to the estate. If the will holds up in court (all formalities met) she will not get anything.

I am not sure why your sister is listed as a heir on the courts certificate of inheritance when she is not mentioned in the will. Two reason I can imagine: 1) The court was not made aware of the will. 2) The will only distributes part of the estate. In this case she is a heir of the leftover part because of the predeceased father.
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Old 13.12.2017, 12:30
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Re: Help with inheritance laws

Hello:

according to the notary, the court considered the will as " a rule for the fragmentation of the property" and not an appointment of new heirs or change to the legal order of succession.

I am frankly confused.

Regards,

Fvn
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Old 13.12.2017, 12:39
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Re: Help with inheritance laws

I suspect that the will did not full comply with Swiss law, and thus is only partially valid.

This was the case with my MIL's will.

Tom
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Old 13.12.2017, 12:52
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Re: Help with inheritance laws

In Switzerland you can't decide on your own you will inherit. There are so called "Pflichterben" (Person who will inherit by law) and "Pflichtanteile" (percentage the Person will inherit). As she was not married and had no children the parents are the only Pflichterben. Since your father passed away, his share will be divided into all his children. So yes, your sister will inherit something.

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Old 13.12.2017, 13:09
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Re: Help with inheritance laws

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In Switzerland you can't decide on your own you will inherit.
Really?! Defeats the purpose of having a Will then does it not?
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Old 13.12.2017, 13:21
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Re: Help with inheritance laws

"Protection of statutory entitlements

A statutory entitlement is a guaranteed share of the deceased's estate for the children, parents, spouse and registered partner. Even if you make a will, you cannot override a family member's statutory entitlement. However, heirs can renounce their statutory entitlements by signing an inheritance renunciation contract.

If a will fails to provide the heirs with their statutory entitlements, the will is not automatically invalid, but must be contested in court by the statutory heirs."

https://www.ch.ch/en/succession-what-does-the-law-say/

Really depends on whether you have close relatives or not. We made our wills recently and because we don't we could pretty much say where the estate goes. If hubby goes after me then his cousins get the inheritance, if I'm the last to go the estate goes to a couple of charities.
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Old 13.12.2017, 13:32
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Re: Help with inheritance laws

Your mother gets 50%
Your father gets 50%

Since your father passed away his share will be equally divided amongst his children which gives you and your sister 50% each of his share.

These are the legal minimum shares according to law. And your sister could not override this with a will.

https://www.admin.ch/opc/de/classifi...html#id-3-1-14
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Old 13.12.2017, 14:02
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Re: Help with inheritance laws

According to a Swiss law firm: "If the deceased leaves no issue, the estate passes to the parental line (2nd parentela). The father and mother each inherit one-half of the estate. A predeceased parent is replaced by his or her issue per stirpes."

Assuming that the Will is not valid, the Swiss law of intestacy would then grant 50% to your mother and 25% to you and your sister.

More information at this link (which opens a pdf in English):

https://www.google.ch/url?sa=t&rct=j...WQlAzw5MUnmOAK
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Old 13.12.2017, 14:10
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Re: Help with inheritance laws

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[COLOR=black][FONT="Verdana"]In Switzerland you can't decide on your own you will inherit.
Yes you can, at least to a certain degree and 100% in case no one objects. (As you are dead at the time someone objects this mostly does not bother the deceased) The law does not stipulate you must give all Pflichterben their rightful share (Pflichtteil). It only says that does which have a Pflichtteil may request it if they wish.


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Your mother gets 50%
Your father gets 50%

Since your father passed away his share will be equally divided amongst his children which gives you and your sister 50% each of his share.

These are the legal minimum shares according to law. And your sister could not override this with a will.
Once again, you can override the law. And such a will is perfectly o.k. in case none of the excluded heirs with a Pflichtteil objects.
There is no minimum share/Pflichtteil for siblings. Only the the surviving mother has a right to 25%, which she may request if she gets less.


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according to the notary, the court considered the will as " a rule for the fragmentation of the property" and not an appointment of new heirs or change to the legal order of succession.
Looks like the will did not divide and distribute all of the estate between you and your mother and there seems to be a rest which was not assigned to any heir AND as your sister was not specifically excluded she is a rightful heir by law as well.
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Old 13.12.2017, 14:36
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Re: Help with inheritance laws

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Yes you can, at least to a certain degree and 100% in case no one objects. (As you are dead at the time someone objects this mostly does not bother the deceased) The law does not stipulate you must give all Pflichterben their rightful share (Pflichtteil). It only says that does which have a Pflichtteil may request it if they wish.
This I agree. I no-one objects, the will should be valid.


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Once again, you can override the law. And such a will is perfectly o.k. in case none of the excluded heirs with a Pflichtteil objects.
There is no minimum share/Pflichtteil for siblings. Only the the surviving mother has a right to 25%, which she may request if she gets less..
This I disagree. Since there is no husband and no children the parents get - according to the law 50% each. The "Pflichtteil" for the parents is 50% of the 50% so 25% each. See here https://www.vermoegenszentrum.ch/rat...ufteilung.html


Since the father is deceased his 25% Pflichtteil will be given to his children. So those 25% will be divided by the number of children and therefore the sister does have a Pflichtteil but only because she gets part of her fathers Pflichtteil.
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Old 13.12.2017, 14:40
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Re: Help with inheritance laws

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Yes you can, at least to a certain degree and 100% in case no one objects. (As you are dead at the time someone objects this mostly does not bother the deceased) The law does not stipulate you must give all Pflichterben their rightful share (Pflichtteil). It only says that does which have a Pflichtteil may request it if they wish.




Once again, you can override the law. And such a will is perfectly o.k. in case none of the excluded heirs with a Pflichtteil objects.
There is no minimum share/Pflichtteil for siblings. Only the the surviving mother has a right to 25%, which she may request if she gets less.




Looks like the will did not divide and distribute all of the estate between you and your mother and there seems to be a rest which was not assigned to any heir AND as your sister was not specifically excluded she is a rightful heir by law as well.
Yes it is true that the part which falls outside the legal minimum can be freely distributed at the will of the deceased, however the legal minimum part for parents to which they are entitled is 50% of 50% to each, and since father has deceased his part will be equally shared amongst his offspring.

And given that the testament is not recognised as valid everything goes to the parents and fathers half will go to his offspring, leaving 25% to each of the surviving sisters.
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Old 13.12.2017, 15:23
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Re: Help with inheritance laws

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Really?! Defeats the purpose of having a Will then does it not?
No, as you can specify that certain people get certain things, for example my wife can give all her jewelry and cash to her daughter, and hard-to-sell stuff to her son. She can also choose to give 25% to whomever.

Tom
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Old 13.12.2017, 15:26
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Re: Help with inheritance laws

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Your mother gets 50%
Your father gets 50%

Since your father passed away his share will be equally divided amongst his children which gives you and your sister 50% each of his share.

These are the legal minimum shares according to law. And your sister could not override this with a will.

https://www.admin.ch/opc/de/classifi...html#id-3-1-14
It works this way in pretty much all European countries (excepting the Brexit group ).

Tom
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Old 13.12.2017, 15:35
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Re: Help with inheritance laws

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Since the father is deceased his 25% Pflichtteil will be given to his children. So those 25% will be divided by the number of children and therefore the sister does have a Pflichtteil but only because she gets part of her fathers Pflichtteil.
The fathers Pflichtteil is not inherited-able. Read the law Art. 471 Civil Code
German :https://www.admin.ch/opc/de/classifi...ndex.html#a471
English: https://www.admin.ch/opc/en/classifi...ndex.html#a471 (whit a bit special translation)

In the German text it clearly says that any offspring has a Pflichtteil and the parents have a Pflichtteil (and also surviving spouse or registered partner).

If siblings had a Pflichtteil as well it would say so specifically or it would define that the "Elterliche Stamm"/ "Parental line" has a Pflichtteil entitlement. Just like it those with "Nachkommen"/"offspring" where the Pflichtteil is not limited to "Kinder"/"children".

A quick Google search shows that many share my view, siblings have no Pflichtteil: https://www.google.ch/search?q=pflic...wister+schweiz

And if you had used the calculator in your VZ link you would see that the Pflichtteil part of the estate is 25%. This is exactly the mothers entitlement.

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And given that the testament is not recognised as valid everything goes to the parents and fathers half will go to his offspring, leaving 25% to each of the surviving sisters.
There is so far no indication that the will is invalid only that it is incomplete or not specific enough about distributing the estate.
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Old 13.12.2017, 17:53
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Re: Help with inheritance laws

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The fathers Pflichtteil is not inherited-able. Read the law Art. 471 Civil Code
German :https://www.admin.ch/opc/de/classifi...ndex.html#a471
English: https://www.admin.ch/opc/en/classifi...ndex.html#a471 (whit a bit special translation)

In the German text it clearly says that any offspring has a Pflichtteil and the parents have a Pflichtteil (and also surviving spouse or registered partner).

If siblings had a Pflichtteil as well it would say so specifically or it would define that the "Elterliche Stamm"/ "Parental line" has a Pflichtteil entitlement. Just like it those with "Nachkommen"/"offspring" where the Pflichtteil is not limited to "Kinder"/"children".

A quick Google search shows that many share my view, siblings have no Pflichtteil: https://www.google.ch/search?q=pflic...wister+schweiz

And if you had used the calculator in your VZ link you would see that the Pflichtteil part of the estate is 25%. This is exactly the mothers entitlement.



There is so far no indication that the will is invalid only that it is incomplete or not specific enough about distributing the estate.
sorry but I don't agree


It's true that the sister does not have a Pflichtteil - as a sister. She has a Pflichtteil as a daughter of a deceased Person with a Pflichtteil. This is a big difference. The law does not stipulate the Parentel but that does not mean that it's not there. I know, I studied law. See here https://www.notariate.zh.ch/deu/nota...echt/wer-erbt/


Relevant section (sorry only in German):
Die Verwandten
Die Verwandten werden in drei Gruppen (Parentelen) eingeteilt, dazu zählen die:
  1. xxx
  2. Eltern:
    Vater und Mutter erben je zur Hälfte. An die Stelle des vorverstorbenen Vaters bzw. der Mutter treten je ihre Nachkommen (Geschwister, Nichten und Neffen des Erblassers), und zwar in allen Graden nach Stämmen. Fehlt es an Nachkommen auf der einen Seite, so fällt die ganze Erbschaft an die Nachkommen der anderen Seite. Dies ist die zweite Gruppe (2. Parentel).
  3. xxx
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Old 13.12.2017, 18:12
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Re: Help with inheritance laws

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sorry but I don't agree


It's true that the sister does not have a Pflichtteil - as a sister. She has a Pflichtteil as a daughter of a deceased Person with a Pflichtteil. This is a big difference. The law does not stipulate the Parentel but that does not mean that it's not there. I know, I studied law. See here https://www.notariate.zh.ch/deu/nota...echt/wer-erbt/
Do not mix up who inherits when there is no will and who has an entitlement to a Pflichtteil. Only the parents themselves have a Pflichtteil right, but not the siblings. See the difference in wording of Art. 458 and Art. 471.

See also the PowerPoint Slide linked at your link: https://www.notariate.zh.ch/deu/down...ot_erb_wer#act

In case one or two parents are pre-deceased the Pflichteil is not inherited from parents to the siblings.

The law means literally parents and parents only and not the parental line in any way or meaning.

I am willing to pay CHF 100 to a ZEWO approved charity if you are able to prove me wrong.
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Old 13.12.2017, 18:14
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Re: Help with inheritance laws

Siblings are not entitled to a statuory portion of the estate but it seems to me that's not the point at issue here. I think the problem is how your sister's will should be interpreted. Was it your sister's intention to give all of the assets to you and your mother, cutting the other sister out of the will? Or was it only her intention to set up certain rules as to how the estate should be devided up (Verteilungsregel) without changing the legal order of succession? In the latter case your sister would still qualify for a portion of the estate. And that seems to be the opinion of the court as it mentions " a rule for the fragmentation of the property" (fnv`s second post).
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Old 13.12.2017, 19:39
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Re: Help with inheritance laws

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Do not mix up who inherits when there is no will and who has an entitlement to a Pflichtteil. Only the parents themselves have a Pflichtteil right, but not the siblings. See the difference in wording of Art. 458 and Art. 471.

See also the PowerPoint Slide linked at your link: https://www.notariate.zh.ch/deu/down...ot_erb_wer#act

In case one or two parents are pre-deceased the Pflichteil is not inherited from parents to the siblings.

The law means literally parents and parents only and not the parental line in any way or meaning.

I am willing to pay CHF 100 to a ZEWO approved charity if you are able to prove me wrong.
In general you are correct, but in this situation the court is of opinion that the will is not to be seen as something that changes the line of succession, so since nothing else is arranged to change this, article 458 becomes leading. Which results in 50% of the total for mum, and 25% for each sister since they will share the 50% of the deceased father.

Surely a certain asset could be given to someone specific, but since we have no info on what all is in the heritage and what is all in the paper or what it mentions on specific distributions I can only fall back to the percentages as stated by the law.

Last edited by EdwinNL; 13.12.2017 at 19:58.
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Old 13.12.2017, 20:10
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Re: Help with inheritance laws

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Which results in 50% of the total for mum, and 25% for each sister since they will share the 50% of the deceased father.
Not quite.

The mother gets 50% of the deceased father's share in addition to her 50%, so 75% total.

The other 50% of the father goes to the two siblings, so 12.5% each of the total.

BTDT.

Tom
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