Estate, legacy or a gift?
Through an inheritance, the testator bequeaths a percentage of his or her assets AND debts to the community of heirs.
«… Hans receives 20% of the disposable part»
«I name Peter …. as my sole heir»
Through a legacy, the beneficiary does not become part of the community of heirs, but receives a fixed sum or certain material assets.
«I bequeath my watch to …» or
«I bequeath a legacy of
CHF 10’000 to …»
A gift is any inter vivos disposition in which a person uses his or her assets to enrich another without receiving an equivalent consideration.
«… Max gives Kurt his collection of postage stamps.»
We show you who you can bequeath and how
Simple and easy to understand with given examples
When a person dies, he or she leaves assets (collectively also called «estate») behind. Such an inheritance can be received as a statutory or named heir. Statutory heirs are e.g. the children or the testator’s spouse. Named heirs are determined by the testator in his or her will or in a contract of succession. All heirs become part of the community of heirs and thereby acquire rights and obligations. An heir is entitled to a certain part of the estate, depending on how many other heirs the latter has to be shared with. However, heirs also become responsible for the debts left by the testator.
Theodor is single and has no children. He has a niece, but he hardly has any contact with her. Theodor has supported animal protection all his life and loves animals. If Theodor made no provisions, his niece would be the only remaining statutory heiress to his estate. Therefore, Theodor decides to settle his estate and to draw up a will to leave his assets, including a villa in Zurich, to an animal protection organisation of his choice. He attaches a burden to the disposition, requesting that the organisation has to ensure that his cat is always well cared for until the cat’s death.
In the case of a legacy, the legatee does not become part of the community of heirs. The legatee has the right to recover possession towards the community of heirs for a specific object (e.g. a painting) or a specific sum (e.g. CHF 10,000). A legatee does not become responsible for the debts left by the testator.
Anton has a daughter and a wife. As he has supported a children’s charity (non-profit organization) all his life and children are very close to his heart, he would like to take this into consideration. He would like to do a good deed and asks lawyer Müller for advice. Müller suggests that he consider the charitable organization via a bequest/legacy. The children’s fund can be left a certain sum (e.g. 20,000 CHF) from the estate. However, the charitable organization does not receive any inheritance status and cannot interfere with the daughter and wife in the division of the estate. It only has a right to recover possession of the CHF 20,000. In this way, Anton can help disadvantaged children even after his death.
In the case of a gift, the donor donates the donee a thing or a sum during his or her lifetime. Usually, a contract of donation is concluded for this purpose, within which the contracting parties are named. A gift (unlike an inheritance) does not grant the donee the legal status of an heir.
Ida is widowed and has a wealthy sister. However, she does not take great care of her. Ida has been cared for by her neighbour Charlotte for many years. In addition, Ida has many connections in the Third World: she used to often travel to that part of the world with her late husband – a diplomatic employee of the FDFA. Ida decides to donate a large part of her wealth during her lifetime to her neighbour Charlotte and to a charity that supports aid development for the Third World. She does this by means of a written contract of donation during her lifetime.
Frequently asked questions
What is the difference between a legacy and a provision governing the division of property?
One speaks of a provision governing the division of property when a person is both heir and legatee, but the legacy was not clearly designated as a provisional legacy in the will (in which case the heir would receive the legacy on top of their inheritance quota; yet, statutory entitlement has to still be respected and cannot be circumvented this way). In the case of a provision governing the division of property, the person does not receive the legacy in addition to their inheritance quota, but the former will be deducted from the latter.
What is the difference between heirs and legatees (in the case of an inheritance or legacy)?
The heir becomes part of the community of heirs. The legatee does not become part of the community of heirs and solely has the right to recover possession towards the community of heirs. The heirs, on the other hand, acquire various rights and obligations. This is how they become responsible for the settlement of debts left by the testator.
What part of the estate can I freely dispose of?
The so-called «disposable part» is determined by deducting all statutory inheritance entitlements from the estate. If there is a spouse and a child (statutory inheritance entitlement ¼ each), the disposable part is ½. The testator has complete testamentary freedom over these 3/8. For example, they can give it to a reliable non-profit organisation.
What is better suited for a donation to a charitable organization (inheritance or legacy/bequest)?
This, of course, depends on the specific situation. In principle, a legate is less burdensome for the heirs, as there is solely a right to recover possession of a thing or a sum. The legatee cannot interfere in the community of heirs and does not have a say in the division of the estate. If, on the other hand, the testator wishes to bequeath a large part of his or her assets to a non-profit organisation or even his or her entire assets to a sole heir, it is more suitable to use the provision of inheritance. In addition, obligations may also be imposed on the heirs upon inheritance (see example 1, above).
How can I name an heir or bequeath a legacy to a beneficiary?
This is done by means of a testamentary disposition, i.e. a will or a contract of succession. The respective validity requirements must be complied with.
How do I prevent my father from giving away all his wealth during his lifetime?
Statutory heirs (descendants, parents, siblings, etc.) have a right to hotchpot. Gifts to statutory heirs which exceed usual occasional gifts must therefore be compensated by the recipient, unless he or she has been expressly released from the obligation to compensate (note: compliance with statutory entitlements).