Quick Summary
- The estate is generally not settled via Switzerland for Swiss nationals living abroad.
- However, Swiss nationals living abroad may submit their estate to Swiss law and Swiss jurisdiction.
- A will is formally valid if it complies with the regulations under Swiss law or the regulations of the country of residence.
- A choice of law and jurisdiction in favor of Switzerland has no effect on inheritance tax.
Which country is responsible for my estate?
There are two aspects relevant for this question. On the one hand, it is a question of which authorities and courts are responsible. For example, each country autonomously regulates which authority is responsible in which cases. On the other hand, there is the question of which law is applicable. Inheritance law regulations differ from country to country, e.g. with regard to the amount of the statutory entitlement.
In Switzerland, both the jurisdiction and the applicable law are based on the decedent’s last domicile. Exceptions apply to foreign properties. Other countries might not base their taxation on residence but, for example, on nationality or habitual residence. Switzerland and many other countries try coordinating these jurisdictions through various agreements. Which law is applicable and which authority declares itself responsible will therefore depend on the respective country and their treaties with Switzerland. Between Switzerland and the EU, the following fact is important: the law of succession of the country in which you last had your center of life applies.
Example:
Mrs. Müller is Swiss. She has been living in Portugal for several years. Mrs. Müller wonders which statutory entitlements she must consider when drawing up her will. Portuguese law applies to the estate of Mrs. Müller. In order to find out what her entitlements to a statutory entitlement are, Mrs. Müller must contact experts in Portugal. The same applies to Mrs. Müller’s surviving relatives. If, for example, they want to know how to reject Mrs. Müller’s inheritance, they should also contact Portuguese experts.
Example:
Mr. Müller is German. He moved to Switzerland with his family a few years ago. Swiss law applies for his estate, for which Swiss authorities are responsible.
What do I have to do in order for Swiss inheritance law to apply?
As you have seen, in the case of Swiss nationals living abroad, the foreign authorities are generally responsible and their respective laws apply. However, some Swiss nationals abroad wish their estate to be settled via Switzerland. It is possible to provide for a choice of law or jurisdiction in favor of Switzerland in your will or inheritance contract. Such a provision will remain in effect until you change or replace it. Persons living abroad should also note that you can only choose a Swiss jurisdiction and Swiss law if you have Swiss citizenship. If you are no longer a Swiss citizen at the time of death, the choice of jurisdiction and law no longer applies.
Example:
Marc is Swiss. He has been living in Germany for some time. Marc has the option of submitting his estate to the jurisdiction of either Swiss or German authorities. To do so, however, he or she must make an explicit choice of jurisdiction in favor of Switzerland. Marc can specify this in his will, for example. The Swiss authorities will then apply Swiss law. Unless Marc has ordered the application of German law but the jurisdiction of Swiss authorities. If it does not regulate anything at all, German authorities will be responsible and apply German law.
Requirements for the Will
A will’s requirements are regulated differently in the individual countries. For example, in Switzerland the will must be written, signed and dated by hand from beginning to end. In contrast, in Austria, for example, the indication of place and date is recommended but not mandatory. Now, what are the requirements for the will in your case?
There is an international convention that sets out the requirements for the formal validity of a will. Switzerland is part of this agreement. Therefore, among other things, a will is formally valid if it complies with Swiss law (home country) or the law of the country of residence.
Example:
In the case of a Swiss national living in Austria, the will is formally valid if it meets the requirements of Swiss or Austrian law.
Recognition and enforcement of judgments
You have now learned that, in principle, a choice of home jurisdiction in favor of Switzerland is possible. However, this does not automatically mean that if a Swiss court decides something, this decision will also be implemented by the authorities abroad. This is relevant, for example, if objects are located abroad, and you are dependent on the assistance of foreign authorities. It thus makes sense to clarify whether a Swiss judgment could be enforced abroad. This is usually the case within the European Union.
Does a choice of law affect estate taxes?
Inheritance tax in Switzerland depends on the decedent’s last residence (note that this is different for real estate). Thus, if a testator’s last residence was abroad, there is usually no inheritance tax in Switzerland. This is the case if there is no property located in Switzerland. Subjecting your estate to Swiss law does not change this. A choice of law in favor of Swiss law therefore has no effect on inheritance tax.
Who can I contact for further questions?
Inheritance law matters with a foreign connection raise many questions for those affected. Depending on the complexity, a consultation may be useful. We would be happy to draw your attention to our free initial legal consultation. Our experienced attorneys will provide you with an assessment of whether further counseling is appropriate. Do you have questions about inheritance law in your country of residence? In this case, we recommend that you contact a specialist in that country directly.