The essentials in brief
- A bequest – or legacy – is a donation from the estate that does not require the legatee to become part of the community of heirs.
- The bequest can include assets of all types: Jewellery, property, a right of residence, or money, for example.
- The will must clearly stipulate that the testator wants to pass on a bequest.
- The legatee can ask for the bequest from the community of heirs.
- Depending on the circumstances, a bequest can incur inheritance taxes.
Benefit without the obligations of an heir
The bequest – also called a legacy – is a form of gift mortis causa besides appointing an heir. Through a bequest, a person receives a certain pecuniary benefit without being appointed as an heir. Unlike statutory intestate succession, a legatee is not a member of the community of heirs. This means that a legatee has neither the rights nor the obligations of an heir. For example, they are not liable for the testator’s debts (so there is no joint liability).
Instructions on how to divide an estate or bequest?
With a bequest, a testator can transfer money, noncash assets, or rights to a person in contemplation of the testator’s death (‘causa mortis’). For example, the bequest can entail a certain amount of money, but also jewellery, property, or rights (such as rights of residence). If a fixed percentage is promised to an heir but the wording is unclear, it will be assumed that it is an inheritance and not a bequest.
Whether a bequest or a status as heir is assumed depends on the wording in the testamentary disposition. The allocation of a fixed amount of assets is normally unproblematic, such as the wording: ‘I bequeath XY the sum of CHF 1,000 from my estate.’ You can designate a specific person or a charity as XY.
Bequest of an object
Less clear is the allocation of a specific object of inheritance. If it is unclear whether the testator intended to pass on a bequest, the respective clause in the will will be deemed instructions on how to divide the estate and not a bequest. For example: ‘I bequeath my pocket watch to my son’. If the wrong wording were chosen, the legatee would become an heir, against the testator’s intentions. The use of the term ‘bequeath’ or ‘bequest’ alone is frequently not enough, especially since one’s own son is also heir to a compulsory portion under the law.
You can avoid misinterpretation by explicitly referring to the bequest in the law. A sample wording is: ‘My great-niece, Jane Doe, should receive my pocket watch as a bequest for the purposes of Art. 484 et seqq. ZGB (Swiss Civil Code).’
The bequest can also be worded as instructions to the heirs: ‘My heirs must pass the sales proceeds from my pocket watch on to XY as a bequest.’ If a person owes debts to the testator, the testator can release this third party in their testamentary disposition. This release of debt would then be equivalent to a bequest. To be completely clear when including a bequest in your testamentary disposition, we recommend that you seek legal advice. We would be glad to offer you a free initial consultation with inheritance law specialists.
What’s the relationship between a bequest and an inheritance?
We now know that a bequest is not part of an inheritance. But how are the two related? A testator can provide for bequests only insofar as this does not infringe on the compulsory portions of the legal heirs. If the heirs’ compulsory portions are infringed, the heirs can assert their statutory minimum claims against the legatee by using an action in abatement. And a bequest can be contested based on the invalidity of the will.
If a person is both a legatee and an heir – as in the example above with the son and the pocket watch – that person is entitled to their bequest even if they renounce their inheritance. This means that only the pure pecuniary benefit would remain, without the liability risk or the cooperation obligations incumbent on the community of heirs. Conversely, the legatee could just renounce the bequest whether they are an heir or not.
How can the legatee claim the bequest?
The legatee is entitled to have the object of the bequest handed over to them by the community of heirs. The legatee’s claim against the heirs will become due as soon as the heirs have accepted the inheritance or can no longer renounce it. If the community of heirs refuses to honour the legatee’s claim, the legatee can assert it before a court of law. The legatee remains entitled to the bequest even if the heirs obligated to pass it on do not take possession of the inheritance, for whatever reason. And the legatee’s entitlement to the bequest remains in effect toward subsequent or substitute heirs. The legatee can assert their claim against those people as well.
If the bequeathed item no longer exists, the situation is different. If a bequeathed item is no longer in the estate when the testator dies, the legatee no longer has a claim against the person who would have been obligated to hand the item over.
The claim to the bequest also becomes invalid if the legatee dies before the testator. This means the legatee’s heirs cannot demand the bequest.
Does a bequest have tax implications?
Just like an inheritance, a bequest is subject to inheritance tax. Whether inheritance taxes accrue depends on various factors: from the degree of kinship between the legatee and the testator, the testator’s canton of residence, and the amount of the bequest. This article contains more information on inheritance tax.
When does a bequest make sense?
A bequest especially makes sense if people who are not entitled to be heirs are to receive a donation. A bequest can benefit people close to the testator, companies, or charitable organisations. Since charitable organisations are exempt from inheritance tax in almost all cantons, they can profit from a bequest to the full extent. The charity can then receive the legacy without having to worry about the rest of the inheritance and the obligations associated with it (see also: Considering a charitable organisation).
Consider the following
- Think about someone to whom you wish to leave a legacy without appointing them as an heir. Are there certain charitable organisations you would like to support with your estate? Here are some trusted organisations.
- Make sure the bequest is recognisable and clearly designated in your testamentary disposition. You can obtain legal support from our free Testament Generator or our offer for a free initial consultation with inheritance law specialists.
- If you want to bequeath something to an NGO, for example, explain this to your heirs. They will be more likely to accept this bequest. Please read our blog article on this.
With a bequest/legacy, you benefit the recipient from the assets in your estate by will without appointing them as an heir. This means the legatee can profit from the estate without being subject to the typical obligations under inheritance law.
The intent to pass on a bequest must be clearly set forth in the will. Not all wordings will suffice to that end, especially in confusing situations. This will usually result in the supposed legatee being inadvertently appointed as an heir.
Although the bequest must be strictly separated from the estate, the legacy recipients and heirs have reciprocal claims against each other. And both qualities can come together in one person if an heir is also left a bequest.