The community of heirs in Swiss inheritance law

What is a community of heirs?

The sum of a person’s assets and liabilities (i.e. their assets and debts) is transferred as a whole to the community of heirs upon their death. The components of the estate are estimated on the basis of their market value at the time of death and recorded in an inventory.

Upon the death of the deceased, the heirs succeed to the deceased’s estate. An heir is anyone who participates in the inheritance by law or by disposition of property upon death(will or positive inheritance contract). However, no one is forced to accept an inheritance against his or her will. Anyone who has renounced the inheritance or who renounces it after the inheritance has been opened does not become an heir. The latter is particularly recommended if there are justified concerns about over-indebtedness. Anyone who disclaims is excluded from the succession. If all heirs disclaim, the inheritance is officially liquidated. Anyone who has been validly disinherited or is unworthy of inheritance by law is also not included in the group of persons entitled to inherit.

If there is only one heir, there is no need for a community of heirs. The estate goes to the sole heir and does not have to be divided up. However, such a case is rather rare. It is more common for a testator to leave several relatives entitled to inherit. These are often spouses, registered partners, descendants or relatives of the parental line. It is also possible to appoint other surviving dependants by means of a will or inheritance contract. These can be natural persons, but also legal entities (e.g. NGOs or charitable foundations).

If there are several beneficiaries, they cannot take possession of the estate immediately after the death of the deceased. Until the estate is divided, they may only dispose of it unanimously as joint owners. This requirement can cause problems if the heirs disagree. For example, how to proceed in urgent matters (e.g. the payment of debts or the continuation of a business).

What rights and obligations do the members of a community of heirs have?

The community of heirs has no legal personality of its own. This means that the individual heirs themselves are the direct bearers of rights and obligations in connection with the inheritance. They have such rights among themselves (in their internal relationship), but also towards third parties (in their external relationship).

Obligations of the heirs

Heirs are legally obliged to pay the debts of the estate. Debts of the deceased or inheritance debts (liabilities that already existed during the deceased’s lifetime) and inheritance debts (obligations that arise with the inheritance, e.g. funeral costs or lawyers’ fees) are generally paid from the estate assets. They are deducted before the available portion is calculated. It is advisable to pay off all debts from the estate assets as early as possible. This can prevent the accrual of expensive default interest or damages or at least keep the costs low. At the very least, all parties involved are spared the time-consuming and costly debt enforcement proceedings.

The heirs are jointly and severally liable with their own assets for the debts of the deceased. Each member can therefore demand that the inheritance debts be repaid or secured before the division.

As part of the division of the estate (see below), heirs must inform each other of all facts – in particular lifetime gifts and advance withdrawals – that are of significance for the equal and fair division of the estate.

Certain lifetime gifts are subject to a duty of settlement: If individual heirs have received assets during their lifetime that are deducted from their inheritance share, they may be obliged to settle them. This means that they must inform their co-heirs of any advance inheritance payments and “contribute” these to the estate. This increases the estate so that more assets can be distributed. However, the testator can also waive the equalization.

Rights of the heirs

In principle, all heirs have equal rights. Even a single heir, regardless of the amount of her inheritance share, can object to any decision of the community or delay the division through various legal acts. A single person can therefore stop the entire inheritance process with their veto – regardless of whether they have reasonable grounds for doing so or not.

Conflicts between the members of the community of heirs should be addressed at an early stage. At best, the settlement should not place an excessive burden on the estate. To this end, the testator is free to appoint an executor. This person must be appointed by means of a disposition of property upon death. Alternatively, at the request of a co-heir, the competent cantonal authority may appoint a representative of the heirs or an estate administrator until the estate is divided. Executors, representatives of heirs and estate administrators have very similar duties: They manage the estate in the interests of the heirs so that the assets are preserved. Accordingly, they require the authority to conclude all legal transactions that their task usually entails. This includes, for example, the maintenance, letting or sale of properties or the reallocation of assets into advantageous forms of investment. The heirs can in turn unanimously determine or restrict the rights and duties of their representative. In addition, the provisions of contract law apply. Any heir may lodge a complaint against the actions of an executor with the competent supervisory authority and request that he or she be removed.

In principle, every heir can request the division of the estate at any time. This is to ensure that no one has to remain in the community of heirs against their will. In practice, however, there are various processes to be completed first: the first step is to determine the members of the community of heirs and the scope of their claims. For this reason, the deadlines for waiver, for carrying out the public inventory or for filing inheritance law actions(action for invalidity, action for reduction, etc.) must be awaited. In the case of acceptance under public inventory, heirs are only liable for those debts of the deceased that were registered by the creditors in good time and included in the inventory. The imminent birth of a child entitled to inherit, testamentary prohibitions on division by the testator and official or court orders also have a suspensive effect.

How can the community of heirs be dissolved?

Even if the community of heirs can last for months, years or even decades, it is not a permanent solution. Sooner or later, the inheritance will have to be divided. This is also in the interests of the heirs. Only after the division has been completed may they make independent decisions about the inherited assets.

The division can take place in several ways. On the one hand, the testator can stipulate division rules in a will or inheritance contract. This tells the heirs how to divide the estate. The executor mentioned above also has the task of carrying out the division of the estate in accordance with the testator’s instructions or the statutory provisions.

On the other hand, the heirs can deviate from the division rules and freely agree on the division if they are in agreement. This requires a written inheritance division agreement.

In addition to the testator’s division provisions and the division agreement between the heirs, lots can also be created. The heirs can agree on the allocation of the lots or have the competent authority decide by drawing lots.

Indivisible items should, if possible, go to a single person in their entirety. Inheritance items that individual heirs cannot buy out must be sold or auctioned. The heirs’ claims can then be settled from the proceeds.

Divisible inherited property is allocated to the individual heirs in accordance with division regulations, division agreements or lots. The now sole owners can thus decide independently of each other on the inheritance received. However, they may have to pay cantonal inheritance tax on their share of the inheritance.

The heirs are liable to each other for defects in the inherited property for one year after the division has been completed. They continue to be jointly and severally liable to third parties for outstanding debts of the deceased for up to five years. This means that each creditor can demand repayment of their entire claim from each heir. Each heir is liable not only with their share of the inheritance, but also with their other private assets if the estate is insufficient. The heirs have a right of recourse against each other in proportion to their inheritance shares.

If payment is not made, the creditors are free to initiate debt enforcement proceedings for monetary debts. In the case of debts in kind and services, they must sue for performance. In any case, the claims of the creditors of the estate must be satisfied before those of the legatees.

Quick Summary

Upon the death of a person, their heirs receive the entire estate, i.e. all assets and debts, in joint ownership. They form a community of heirs that can initially only dispose of the estate unanimously.
The members of the community of heirs have rights and obligations. The most important obligations are liability for inheritance debts, the mutual obligation to provide information and the settlement of certain lifetime gifts. The rights include, for example, the right to veto resolutions of the community of heirs, the right to demand the appointment of a representative of the heirs or the right to demand the division of the estate.
The community of heirs is dissolved by the division of the estate. This can be done by implementing the division rules, by concluding a division agreement or by drawing lots. During the division, each heir is allocated individual items of the estate or the proceeds from their sale in order to satisfy the value of their claims.

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