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Old 01.06.2010, 17:11
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making a will in Switzerland

Hi All

Does anyone have any expereince with drawing up a will in Switzerland? I have heard a simple letter laying out your wishes is sufficient and no legal sign off is required.

thanks for any advice.
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Old 01.06.2010, 17:36
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Re: making a will in Switzerland

I made a will here. My wife and I talked to the local "Notar" who wrote it in correct legal language. I then had to write it out and handed it to my wife for safe keeping. We also made an "Ehevertrag" which covers all assets accrued in the marriage. I wouldn't recommend writing a will yourself although it is still legally valid. Unless you understand the system well there are many details which can be overlooked
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Old 01.06.2010, 17:44
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Re: making a will in Switzerland

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Hi All

Does anyone have any expereince with drawing up a will in Switzerland? I have heard a simple letter laying out your wishes is sufficient and no legal sign off is required.

thanks for any advice.
The will/inheritance laws in Switzerland are a very peculiar system. If you come from an anglo-saxon (or any other country really) you should inform yourself well how your wealth will automatically be re-distributed among your family in case of death.. I think there was a thread just recently, but I cannot seem to find it now.. Better go via a professional that knows both Swiss and (insert country name of origin/family base here) law to get it right!
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Old 01.06.2010, 17:46
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Re: making a will in Switzerland

Do you want to write your will according to Swiss law, or do you want to claim Heimatrecht?

If you are a Swiss citizen, including dual, it is my understanding that you must apply Swiss law.

If you are not a Swiss citizen, you can write your will according to your home country laws.

Because Swiss law would have forced us to leave a good chunk to our worthless and undeserving relatives we have done the latter. My husband and I simply wrote letters claiming 'Heimatrecht' - and by that I mean hand written. This, along with a copy of our US will was given to the Gemeinde notary.

A bit of background info:
http://www.ch.ch/private/00029/00037...x.html?lang=en

See also (pages 26-31):
http://www.bj.admin.ch/etc/medialib/...eherecht-d.pdf

.

Last edited by meloncollie; 01.06.2010 at 18:28. Reason: add'l info
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Old 01.06.2010, 17:47
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Re: making a will in Switzerland

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Hi All

Does anyone have any expereince with drawing up a will in Switzerland? I have heard a simple letter laying out your wishes is sufficient and no legal sign off is required.

thanks for any advice.
Depends what you want to give... if it's a real estate, land, property, etc, you have to go in front of a notary. If it's cash, movable assets, etc with no special clause, then a simple letter (well, it's basically a contract) will do it. It does even not request the written form to be valid! A donation is the will of s.o. to donate something to someone else without any compensation in exchange. The will to donate is sufficient in itself.

Be aware of tax consequences. As you are domiciled in Vaud, there is still a donation tax in that canton. The rate may vary depending on your municipality of leaving, to whom you donate and the amount of your will.
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Old 01.06.2010, 19:30
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Re: making a will in Switzerland

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Does anyone have any expereince with drawing up a will in Switzerland?
Yes

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I have heard a simple letter laying out your wishes is sufficient and no legal sign off is required
Depends under which law you choose to draw up your Will. There is no universal standard about what makes a valid Will so you will have to check depending on your choice of governing law.


Your profile says you are a UK national so as others have said you don't have to choose Swiss law.

As a UK national I chose English law because I wanted everything to go to my wife on my death and then to the kids in equal shares. A Will under Swiss law wouldn't permit that as kids have forced inheritance rights.

Under English law you don't have to use a lawyer but you do have follow correct legal formalities or your Will won't be valid. Therefore it's not correct to say you simply need to wrote a letter setting out your wishes. A Will does need to be in writing (but not handwritten - typed is fine) but you need to sign it in the presence of two witnesses who then need to add their signatures in your presence. Witnesses should not be beneficiaries under the Will or their married partners. If they are, the Will is still valid but the Witnesses won't be able to benefit from the Will so your intentions will be frustrated. You don't have to date the Will but it's advisable in case you change it later and you should state that this new Will revokes all others. And you must be over 18 and in sound mind to make one.

Under Swiss law a Will needs to handwritten and be signed and dated with the place. You don't need witnesses. You don't need to have a lawyer sign off on it but you'd be daft if you didn't if you don't understand forced inheritance rights and most would have a Will drawn up and certified by a notary. Under English Law you can choose what your dependants get. Under Swiss Law you don't have the same freedom.

If you're from Scotland and want your Will under Scots Law then you should check the requirements to make a valid Will as they're different from those under English Law. Ditto rights of inheritance of relatives.
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Old 01.06.2010, 19:36
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Re: making a will in Switzerland

In BL, we saw a Notar, because we were buying a house. He explained that, as non-Swiss, we'd be better off writing a will under English law. All we had to do was make sure that the will stated that it was drawn up under the law of England and Wales. Of course, inheritance tax still follows Swiss rules.

Our wishes are quite simple, so no lawyer was required.

I encourage everyone - make a will. It's the best legacy you can give your loved ones in the event of your death.
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Old 01.06.2010, 20:31
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Re: making a will in Switzerland

Ironically I believe it's possible for two partners to leave everything to one another under Swiss law if they are not married, but not if they are married (I posted about this a while back - do a search). I find it immensely frustrating that our wishes in terms of a will could preclude our naturalising if we have to then make a Swiss will with forced legacies to worthless and undeserving relatives, as per Meloncollie. The forced legacies are one of the few things here I object to here on principle (the other being church tax on businesses owned by atheists)
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Old 01.06.2010, 20:44
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Re: making a will in Switzerland

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If you are a Swiss citizen, including dual, it is my understanding that you must apply Swiss law.
.
Ah, is that right? Post 15 in this thread suggests otherwise? Writing A Swiss Will
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Old 01.06.2010, 21:31
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Re: making a will in Switzerland

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Hi All

Does anyone have any experience with drawing up a will in Switzerland? I have heard a simple letter laying out your wishes is sufficient and no legal sign off is required.

thanks for any advice.
You may want to have a look at this parallel thread, to which I added a reasoned comment: Writing A Swiss Will

You seem to be thinking of a holographic Will, which must be entirely hand written. The chance of error is too great to risk for the uninitiated. Use a notary, and the notarial form of Will also gives you greater flexibility.

Or, if you are a British national or a citizen of another country that ratified The Hague Convention (see my posting linked above), you can use a form of Will acceptable under the laws of your country. In any event, if you have assets in a Common Law country (US, Canada, England, Scotland, Ireland, etc.) you should name an executor. And perhaps have a second Will dealing with assets in that country.

A DIY Will (or trust, thinking of Norman F. Dacey's "How To Avoid Probate!") can lead to egregious error and intestacy. And if there are minors involved, assets can be tied up for years -- at great expense.
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Old 01.06.2010, 21:34
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Re: making a will in Switzerland

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The will/inheritance laws in Switzerland are a very peculiar system....
Not so peculiar. Indeed, no more so than Louisiana probate law is compared to that of other American states.

Napoleon's ("Le Premier Consul") greatest gift to the world is the Civil Code.

No better and no worse than the Common Law. Just different. And used in far more countries.
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Old 02.06.2010, 07:25
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Re: making a will in Switzerland

Greatest gift? Common law was based on biblical principles - the Civil Code on secular humanist. ... er... hmm.

To be honest though, I find the idea that my wife inherits before my kids is better than her getting half, and them getting the other half. Probably just English bias against the Corsican.
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Old 02.06.2010, 08:31
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Re: making a will in Switzerland

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I find it immensely frustrating that our wishes in terms of a will could preclude our naturalising if we have to then make a Swiss will with forced legacies to worthless and undeserving relatives, as per Meloncollie. The forced legacies are one of the few things here I object to here on principle (the other being church tax on businesses owned by atheists)
Could you please specify who are these relatives, usually? i thought Swiss Will forces certain distributions to the children/ (or wife/husband if any) but relatives too???

And anyone has idea about the American law?

Thanks
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Old 02.06.2010, 08:47
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Re: making a will in Switzerland

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Could you please specify who are these relatives, usually? i thought Swiss Will forces certain distributions to the children/ (or wife/husband if any) but relatives too???

And anyone has idea about the American law?

Thanks
Under Swiss law, relatives such as parents, assuming they outlive you.
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Old 02.06.2010, 08:48
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Re: making a will in Switzerland

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Could you please specify who are these relatives, usually?
I wouldn't be so indiscreet But seriously, look at the thread linked further up - there's a link in there to a diagram. Basically the pecking order is spouse and children (and their descendants), then parents and siblings (and their descendants), then grandparents, aunts, uncles, cousins (and their descendants). If you have a spouse and no children, then the parents and siblings come into play whether you want them to or not
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Old 02.06.2010, 08:56
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Re: making a will in Switzerland

Thank you for all the feedback. As some of you rightly pointed out I am from the UK and as I still own property there it seems going for a UK will is likely the most straight forward option.
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Old 02.06.2010, 09:08
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Re: making a will in Switzerland

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Thank you for all the feedback. As some of you rightly pointed out I am from the UK and as I still own property there it seems going for a UK will is likely the most straight forward option.

Agreed. At least you have that option.

I also wanted to mention that much of this discussion seems to focus on assets, but what about debts? It seems that if you have more debt than assets, your inheritors can reject the debts. Have seen a few properties on auction lately for this reason...not enough to cover the debt so the inheritors rejected everything.
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Old 02.06.2010, 09:15
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Re: making a will in Switzerland

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Because Swiss law would have forced us to leave a good chunk to our worthless and undeserving relatives
Had quite the shock when I learned about this.

I'd rather get a pet lawyer involved and set up a trust for my cockatoo who can absolutely outlive us rather than see relatives get their hands on anything. There are many useful rescue organizations I'd rather leave money to than relatives.

Or we just have a good time and make sure we spend everything.
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Old 02.06.2010, 09:38
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Re: making a will in Switzerland

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Greatest gift? Common law was based on biblical principles - the Civil Code on secular humanist. ... er... hmm....
That's oversimplifying. "Nationality" is a Civil-Law, and indirectly a Christian, concept.

The Common Law equivalent was "allegiance" (as in "Pledge of"). And, ironically, it is a concept Anglo-Saxon countries have in common with ... Islam ("Sovereignty belongs to Allah.")

The problem is that we never know what a Common-Law statute means until the highest court (ex-House of Lords, now Supreme Court) has ruled on it. (Or, these days, the ECJ or the ECHR.) For a Civil-Law statute we only need to look at Black Letter Law. Well, and Planiol too. (And hey, the late, great Professor Joseph Dainow led a translation of Planiol for the benefit of Louisianans.)
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Old 02.06.2010, 09:56
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Re: making a will in Switzerland

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Could you please specify who are these relatives, usually? i thought Swiss Will forces certain distributions to the children/ (or wife/husband if any) but relatives too???

And anyone has idea about the American law?

Thanks
There is no "American" law, any more than there is a "United Kingdom" law of inheritance. There are state and territory laws (and there are English, Scottish, N.I., Jersey, etc. laws).

In the USA a spouse can "take against the Will", which means that s/he can elect to take (say) 1/2 or 1/3 of the Estate, depending on whether there are offspring.

In US jurisdictions the existence of a spouse and/or children excludes any right of a more distant relative to inherit in intestacy (absence of a Will).

In some US jurisdictions, notably California, the high expense of probate leads to a prevalence of inter-vivos trusts (revocable living trusts); in others (New York, Florida), probate is cheap.

In England (but apparently not Scotland http://www.seniorissues.co.uk/guides...ngland_SI_.pdf ), unlike US states (spousal rights, above), there is almost total freedom of testation and one can disinherit any relative and leave one's estate outside the family. But see Inheritance (Provision for Family and Dependants) Act 1975 which prevents a testator from leaving his dependents in poverty. In Louisiana, alone among US states, one must provide for dependent (minors under 23 and disabled) offspring, but since 1989 forced heirship has been eliminated as a right for adult offspring.

The rules are different in Community Property States (borrowing from Wikipedia: "Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Puerto Rico allows property to be owned as community property also as do several Indian jurisdictions. Alaska is an opt-in community property state; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.") Actually Wisconsin is a Uniform Marital Property Act state, slightly different from CP.

As for Swiss law "forcing" inheritance upon ascendants and siblings: there are ways around that, notably an "accord successoral" or a repudiation of inheritance by the "forced heir". And clever use of foreign entities and trusts (See Lambert, Ian, "Using Cayman Islands Trusts to Overcome the Forced Heirship Problem ", 4 Trust L. & Practice, 1990, pp. 20-24 -- although the Caron v. Odell case in France that I cited earlier suggests that any property left in Switzerland (or France, etc.) could be reallocated by the courts to make up for the succession assets "lost" by the strategy.) New York State law specifically allows a non-domiciliary, including a foreigner, to elect by Will to have New York law apply: Spudis, Barbara C., "Avoiding Civil Law Forced Heirship By Stipulating That New York Law Governs ", 20 Va. J. Int'l L., 1980, pp. 887-911; New York Estates, Powers and Trusts Law, §3-5.1(h).

Last edited by andy02; 02.06.2010 at 10:14.
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