Lastwill and testament

To understand about drafting a will, it is important first to understand the major points of Swiss inheritance law. Inheritance law is governed by the Swiss Civil Code, under articles 457 to 640. This includes the rules relating to inheritance and carrying out successions. These legal provisions mainly exist to govern inheritances in cases where no will exists.

Intestacy

If a person dies without leaving a will, the heirs are named by the Swiss Civil Code. In this case, they are referred to as intestate heirs. The estate of the deceased passes to members of their family, classed into three bloodlines:

1. Their descendants (children, grandchildren, great-grandchildren, etc.)
2. Their father and mother and the descendants thereof (brothers and sisters, nephews and nieces)
3. Their grandfather and grandmother and descendants thereof (uncles and aunts, cousins)

The closest bloodlines take precedence over the others. If the deceased was single and their parents and children are still alive, their children will inherit as they represent the closest statutory heirs.

NB: a cohabiting partner is not considered an heir under the Swiss Civil Code. Unless specified by a will, they will receive nothing.

If the deceased was married, first the marriage is dissolved, at which point an initial division of the assets takes place. Only then will inheritance law come into effect to govern the succession.

Find out how your estate would be divided under the law

Testate successions

Having a last will and testament ensures that your wishes will be respected. In intestate successions, the estate must remain in the family, while a will can be used to bequeath something to a cohabiting partner, loved ones outside the family circle, or to charities.

However, it is not possible to disinherit certain intestate heirs. The Swiss Civil Code sets aside for them a forced heir’s share, meaning that they will receive a set proportion of the estate, whatever happens. Hence the term ‘forced heir’. The statutory inheritances are as follows:

• descendants: 75% 
• spouse or registered partner: 50% 
• father and mother: 50% 

NB: the above percentages apply to the reserved portion of the inheritance, not to someone’s entire estate.

For more information, consult this detailed article on the subject (in French): https://www.tooyoo.ch/fr/blog/guide-pour-bien-preparer-son-heritage/

Drafting a will is the only way to ensure that your final wishes will be respected. By specifying to whom your estate is assigned, you leave no room for doubt. Where there is no valid will, the estate is divided according to legal rules. If you have no direct descendants or spouse, your estate will go to distant relatives or, failing that, the government. Wills are essential for bequeathing to cohabiting partners or if your life partner is not registered. No will, no entitlements. If you wish to make a bequest to a love one with whom you have no family ties, or to a charity, a will is the only means possible.

When drafting a will, it’s important to know which rules of division apply to you. If the will contravenes the reserved portions, the legal heirs can contest it and claim their share of the inheritance. In contrast, where there is no challenge (action in abatement), the will shall apply as it stands.

To help you draw up your will, we have created a wizard where you can define your family situation, understand the division applicable under Swiss inheritance law and calculate the discretionary portion. You can also generate your personal will in PDF format.

At the time of drafting a will, the testator must have the capacity to act, i.e. be of age and capable of reasoned decisions.

Wills mainly exist in two legally valid formats; the third applies only in cases of imminent death (extremely rare). 

Holographic wills

You may draw up your will yourself at any time, without a notary or witnesses. For this will to be legally valid, the following conditions must be met:

• It must be entirely handwritten by the testator.
• It must be dated (day, month and year) and the place of drafting must be indicated.
• It must be signed.

If any of these three items is missing, the will shall be considered null and void. Every effort should be made for the will to be legible.

Public wills

Public wills are drafted before a notary and two witnesses. The testator dictates their wishes to the notary, which drafts and retains the will. The notary can provide advice and verify the legality of the testator’s wishes. The witnesses attest to the testator’s capacity to make reasoned decisions. Public wills are useful in complex cases, such as blended families, business successions or when assets are located in several countries. This type of will is hardest to contest.

Drafting one’s will is not enough. For your wishes to be followed, your original document must be retrievable by the competent authority.

For this purpose, you have several possibilities: 

• File the will officially in canton of residence

Each canton appoints a body with which wills may be filed. In some cantons filing is mandatory; in others it is optional. Please note that if you move to another canton, you will have to start the procedure all over again.

• Have a notary register the place of safekeeping in the central register of wills

The Swiss Federation of Notaries has set up a national register offering notaries, lawyers and public departments/authorities the possibility of registering wills centrally. It is not possible to enter the place of safekeeping in a private capacity. 

• Securely online

You can store your will and other personal legal documents on tooyoo.ch and share them with your nearest and dearest. This allows you always to keep up-to-date versions online or securely on your smartphone. The will is only accessible by your trusted parties and then only after you pass away.