If you want to make sure that your last wishes are respected, you should consult a specialist. During a consultation, the lawyer or notary first asks about your personal situation. The professional needs to know what the family situation is like – whether there are legal heirs such as a child or a parent and how the family tree looks like.
A specialist knows the “room for manoeuvre” when applying the law
After an initial assessment, the lawyer or the notary will proceed to explain the so-called power of disposition. In other words, he or she will outline how much “room for manoeuvre” there is in the law, showing the fractions of the estate that a testator may distribute as he or she wishes. Thereby, the statutory inheritance entitlement is the guideline, as it determines how much of the estate can be freely distributed.
Subsequently, the client must answer the following question: «What are your wishes?». After having more information, the lawyer or notary will assess the various possibilities and outline the different options. Thereby, the current amount of the assets is not of importance as estate specialists only work with fractions. After all, the assets can look very different after death than at the moment when the will is drafted up.
The court keeps a public document
Once this has been determined, a lawyer, a notary or an advocate will draw up a public document, which will then be deposited. What type of documents can be authenticated and where such can be deposited is regulated differently in each canton.
If the circumstances are fairly uncomplicated, a holographic will is sufficient. It must be written in the testator’s own hand from start to finish, include an indication of the day, month and year on which it is drawn up, and be signed by the testator. It is possible to have the signature notarised.
The Swiss Civil Code provides for two forms of testamentary dispositions – the holographic will is written by the testator himself or herself. A will by public deed is made in the presence of two witnesses by a public official, notary public or other person authorised under cantonal law. If a witness is missing, the lawyers have a “pool of witnesses”. In addition to these two forms, there is also the oral will for situations where the testator is prevented from using any other form of will by extraordinary circumstances such as the imminent risk of death, breakdown in communications, epidemic or war. The testator must declare his or her will in the presence of two witnesses and instruct them to have it drawn up as required in the form of a deed.
Protect your partner with a contractual agreement
Married people often choose to settle their last wishes in a marital agreement. In this, the married couple can favour each other. Anything that is not already stipulated in the law must then be recorded in a public deed.
Speaking of legal guidelines: The law stipulates how the estate is regulated for same-sex couples who are in a registered partnership but there are no legal provisions for heterosexual couples who live in a concubinage.
An executor organises the division of estate
Clients often hire a lawyer or a notary when planning their estate, and might even appoint him or her as executor. When planning the estate, it is of course important to respect legal regulations regarding the division of estate.
In a first step the inheritance as a whole is looked at – it regulates who inherits what part of the estate.
In a second step the estate is divided: First, debts have to be repaid. First, debts have to be repaid. Then, on the so-called reference date, cash, material assets and real estate are distributed.
In the case of large or complicated, intricate assets, it is best if the testator appoints an executor, who then takes the place of the former.
The community of residence stores «orders in the event of death»
You can usually deposit dispositions – such as the appointment of an executer – with the municipality of residence which is where the burial office first learns of a person’s death. If a document is deposited with the court, it will be opened only days or even weeks after the testator’s death.
So what has to be taken care immediately after the testator’s death, such as dispositions regarding the funeral, is best deposited with the municipality. Documents containing legal dispositions must be authenticated by a notary and then deposited with a court. If not all of the heirs are known, the municipality must search for them. This is done with extensive research, advertisements, etc.
The time of death can affect the division of estate
Another important thing regarding marital agreements is the following: if each partner brings a child into the marriage, thus creating a so-called blended family, they might not get along. For example, if the spouses die together in an accident, the exact time of death matters. If the husband dies first and the wife an hour later, the children are the legal heirs because she died after her husband. This also applies if it they died seconds apart.
How to proceed? A specialist advises testators to write the following sentence in the authenticated marital agreement: ‹If the spouses die in the same month, this is considered to be dying at the same time.›. The time span can of course be set individually.
Text: Martin Schuppli
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