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-   -   Inheritance Agreement or Will (https://www.englishforum.ch/finance-banking-taxation/298176-inheritance-agreement-will.html)

jinmatahari 19.05.2020 09:46

Inheritance Agreement or Will
 
Hallo everybody,

I am interested in drafting an inheritance agreement/will but I am not sure the difference between inheritance agreement and will.

1) do inheritance agreement and will need the signature of all the parties to be valid?
2) if inheritance agreement is signed by all the parties, can it be overturned by a will signed at a later stage
3) Is 50% the minimum mandatory inheritance of spouse without children and 25% for spouse with children by Swiss Law? Can this minimum mandatory be overrule by an agreement signed by spouse?
4) does a will need to be witnessed by a notary or can it be simply hand-written and signed?
5) Does inheritance agreement need to be drafted by a lawyer and signed by all parties involved?

I look forward to your reply.
Thank you very much and stay healthy!

aSwissInTheUS 19.05.2020 10:19

Re: Inheritance Agreement or Will
 
1. An inheritance agreement is a contract. Hence the German name Erbvertrag. It must be signed by all involved parties.
See Swiss Civil Code starting at Art. 512. They use the term "Contract of succession" https://www.admin.ch/opc/en/classifi...ndex.html#a512

The contract mus be signed in front of a notary public with two independent witnesses.


2. As it is a contract, the contract has first to be properly dissolved before a will can be drawn up. You might add clauses under what circumstance the contract might become void, such as divorce etc.

3. Mandatory part is a bad term. It is a minimum claimable part. If you award to a heir less they must claim (after your death) if they wish more. The minimum part can be overturned by a contract of succession. All parties whose part is reduced must agree, be be capable to act, be capable of judgment, and must sign. Not sure if minors can be excluded as they are normally not capable to act.

4. A hand written will is valid if a will is hand written from the very beginning to the very end, personally, properly dated, and signed.
See Art. 505 Swiss Civil Code https://www.admin.ch/opc/en/classifi...ndex.html#a505

5. You can draft the Contract of succession yourself. But you have to be aware about all the legal pitfalls, hence the advice of a lawyer might be helpful.

jinmatahari 19.05.2020 14:13

Re: Inheritance Agreement or Will
 
Thanks for the reply.

Can I have a contract (after marriage) to separate assets in case of divorce? What will this kind of contract called in German?

Since the contents are not overlap (marriage contract for assets separation in case of divorce and will for assets segregation in case of death), can I still have a separate will in the future after the marriage contract is signed?

I look forward to your reply.
Stay healthy!

aSwissInTheUS 19.05.2020 14:31

Re: Inheritance Agreement or Will
 
Marriage asset contract is an Ehevertrag. You can draw up one anytime during marriage.

With a will you can distribute assets which are "yours". With a marriage contract you can say what it is yours. By default yours is all what you had before marriage, any gifts you received, all inheritances received, and all you got from the previous assets in interest and profit. The rest is divide 50:50 upon dissolution of the marriage.

https://www.ch.ch/en/matrimonial-regime/

st2lemans 19.05.2020 14:35

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by jinmatahari (Post 3182945)
Can I have a contract (after marriage) to separate assets in case of divorce?

No, but you can select one of three marriage regimes:

a) standard: anything brought into the marriage remains separate, anything acquired during the marriage, except by inheritance, is split

b) separate: like a, but all remains separate

c) combined: all is divided except anything inherited

N.B. inherited assets are ALWAYS separate

Tom

jinmatahari 19.05.2020 15:24

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by aSwissInTheUS (Post 3182876)
1. An inheritance agreement is a contract. Hence the German name Erbvertrag. It must be signed by all involved parties.
See Swiss Civil Code starting at Art. 512. They use the term "Contract of succession" https://www.admin.ch/opc/en/classifi...ndex.html#a512

The contract mus be signed in front of a notary public with two independent witnesses.


2. As it is a contract, the contract has first to be properly dissolved before a will can be drawn up. You might add clauses under what circumstance the contract might become void, such as divorce etc.

3. Mandatory part is a bad term. It is a minimum claimable part. If you award to a heir less they must claim (after your death) if they wish more. The minimum part can be overturned by a contract of succession. All parties whose part is reduced must agree, be be capable to act, be capable of judgment, and must sign. Not sure if minors can be excluded as they are normally not capable to act.

4. A hand written will is valid if a will is hand written from the very beginning to the very end, personally, properly dated, and signed.
See Art. 505 Swiss Civil Code https://www.admin.ch/opc/en/classifi...ndex.html#a505

5. You can draft the Contract of succession yourself. But you have to be aware about all the legal pitfalls, hence the advice of a lawyer might be helpful.

Thanks for your reply. Correct me if I am wrong.
Contract of succession is suitable when I would like to overrule something that is set by Swiss law, for example if I would like to set less than the minimum claimable for spouse. It cannot be contested when I die since it is agreed and signed by the spouse.

A will can be drawn by oneself without acknowledgement or agreement with spouse. However, it cannot overrule something that is set by Swiss law, for example, I can only set more than the minimum claimable for spouse. Correct?

st2lemans 19.05.2020 15:28

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by jinmatahari (Post 3182970)
Contract of succession is suitable when I would like to overrule something that is set by Swiss law, for example if I would like to set less than the minimum claimable for spouse. It cannot be contested when I die since it is agreed and signed by the spouse.

Of course it can be contested, whether successfully or not is another matter.

Tom

aSwissInTheUS 19.05.2020 15:48

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by jinmatahari (Post 3182970)
A will can be drawn by oneself without acknowledgement or agreement with spouse. However, it cannot overrule something that is set by Swiss law, for example, I can only set more than the minimum claimable for spouse. Correct?

You can override, but they can challenge (after your death). As Tom says they might also challenge in case of a contract which they signed.
Likely hood that they will succeed with a will is close to 100%, likelihood that they will succeed with a contract they signed at a notary is close to 0%.

jinmatahari 19.05.2020 16:07

Re: Inheritance Agreement or Will
 
Thanks Tom and aSwissInTheUS! You guys are the best!
I have a better understanding now!

In the event of divorce, for savings saved in a sole name account during marriage, 50% of them will be distributed to spouse. How about savings saved in a joint name account? Does it mean that only 25% will be distributed to spouse?

Will the marriage contract signed in Switzerland with notary witness (for assets
saved and properties owned outside Switzerland?) valid?

I look forward to your reply. Stay healthy!

st2lemans 19.05.2020 17:05

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by jinmatahari (Post 3182980)
In the event of divorce, for savings saved in a sole name account during marriage, 50% of them will be distributed to spouse.

Unless you have a separate assets regime, then no distribution.

Tom

yacek 30.07.2021 14:22

Re: Inheritance Agreement or Will
 
There is a possibility for a married couple with children to bestow their part on the surviving spouse. It is called "Meistbegünstigung". This is a practical solution if there is a house and the widow/widower can continue leaving in it and the children would inherit it after the other parent dies.

However, this "Meistbegünstigung" needs a marriage contract (Ehevertrag) done by a notary and costs up to several thousands fr. Is there any other solution? Can this arrangement be done by a written will?

irish_temptation 30.07.2021 18:25

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by yacek (Post 3332918)
There is a possibility for a married couple with children to bestow their part on the surviving spouse. It is called "Meistbegünstigung". This is a practical solution if there is a house and the widow/widower can continue leaving in it and the children would inherit it after the other parent dies.

However, this "Meistbegünstigung" needs a marriage contract (Ehevertrag) done by a notary and costs up to several thousands fr. Is there any other solution? Can this arrangement be done by a written will?

We have that as well. My brother and I will only inherit once both parents have died. If one parent dies everything goes to the surviving parent and only once that parent has died as well the children will get money.

It needs to be singed by a everyone involved in front of a notary.
We are in Zurich so check if the same rules apply but we were told that it can be signed anywhere in Switzerland. So we went to Schaffhausen, because it was a lot cheaper there.

Urs Max 31.07.2021 14:27

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by irish_temptation (Post 3332994)
We have that as well. My brother and I will only inherit once both parents have died. If one parent dies everything goes to the surviving parent and only once that parent has died as well the children will get money.

It gets tricky however if the surviving spouse remarries, because that changes the mandatory shares.

Another potential issue is, that delayed inheritance allows selling the assets. For real estate for instance, the heirs want to make sure that the Erbengemeinschaft (it's automatically created and each member has veto rights on everything) is entered into the land registry as the owner.

amogles 31.07.2021 14:34

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by irish_temptation (Post 3332994)
We have that as well. My brother and I will only inherit once both parents have died. If one parent dies everything goes to the surviving parent and only once that parent has died as well the children will get money.

What about if the surviving parent remarries and the new spouse has children of their own. Could this affect the distribution of assets when they die?

yacek 31.07.2021 21:01

Re: Inheritance Agreement or Will
 
Any inexpensive notary recommendation for such a deed? Would it be a faux pas to call them and ask, or do the Swiss just pay whatever is asked without even batting an eyelid?
Would a foreign notary be sufficient for such an Ehevertrag (written in a foreign language)? Heck, but in my home country such a contract would be void and unenforceable as it is against the inheritance law so no sane notary would accept that.
Another issue is if I'm a dual nationality and my wife not and we have assets both in CH and elsewhere then which country's laws would apply? Would the inheritance proceedings be done in parallel in two countries or in one (of residence?) and enforced in another one?

st2lemans 31.07.2021 21:10

Re: Inheritance Agreement or Will
 
Quote:

Originally Posted by amogles (Post 3333117)
What about if the surviving parent remarries and the new spouse has children of their own. Could this affect the distribution of assets when they die?

Yes.

This also assumes all heirs are 18+ at the signing.

But is invalidated in the case of future sprogs.

Tom


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