This guide aims to help you write your will by providing concrete answers to the main questions that arise when writing your last wishes.

It is the result of an observation: too many Swiss people still neglect to write their will or write a document which turns out to be incomplete or unclear, and therefore likely to generate conflicts after death.

This guide gives you the main tools to enable you to write your will in full et complies with legal requirements.

We answer 12 essential questions that will help you see things more clearly:

1. 1. Why should I write a will?
   2. Are there any things you absolutely need to know before you start?
   3. Is it mandatory to go through a lawyer or a notary?
   4. Where should I keep my will?
   5. How can I change it?
   6. What is the hereditary reserve?
   7. How do I allocate my available quota?
   8. How do I handle donations made during my lifetime?
   9. I want to favor my spouse. How do I do this?
   10. Why should I appoint an executor?
   11. Can I decide what assets will go to my heirs?
   12. What will be the tax treatment of my estate? 

It goes without saying that this guide is not intended to replace personalized advice.

We therefore strongly recommend that you seek advice from qualified professionals if you wish to obtain additional information.

Why and how to write your will?

1) Why should I write a will?

Protect your loved ones with a tailor-made will

If you do not write a will, the legal order of succession will apply. This means that your estate will be passed on to your legal heirs, according to an order pre-established by law.

The legal order in Switzerland:

• • if you have children, your inheritance is divided between your partner (husband, wife or registered partner) and your children (or, if they are deceased, their descendants);

• • if you don't have children, your inheritance is divided between your partner and your parents (or, if they are deceased, your brothers and sisters);

• • if you don't have close family – from your parents or grandparents – your inheritance goes entirely to your partner;

• • if you are not married or in a registered partnership and you have no close family, your inheritance goes to the canton or commune of your last residence.

It follows that in the absence of a will, your grandchildren (if your children are still alive) or your partner, for example, will not be your heirs.

In addition to allowing you to designate your heirs, a will will allow you to:

1. Identify the assets that will be the subject of your inheritance

Mention your assets to ensure that your loved ones will actually have access to your property. It is common for heirs to struggle to identify what the deceased's assets were and where they were located at the time of inheritance.cryptomonnaies, loan to a third party, foreign accounts, etc.).

2. To allocate your property according to your wishes

In a will, you have the option of establishing rules for the division of your assets, that is, indicating how your property should be distributed among your heirs.

3. Protect your spouse

Inheritance law offers you possibilities to favor your spouse as much as possible, for example by leaving them theusufruct on part of your estate or by allocating your entire available portion to it.

4. To appoint an executor

In a will, you have the option to appoint a trusted person to manage your estate. The designated person will be responsible for ensuring that your wishes are respected and facilitating the process for your heirs.

5. Reduce conflicts

By clearly specifying your wishes, you reduce the risk of disputes between heirsA well-drafted will helps prevent family conflicts by establishing clear and precise instructions.

2) What I absolutely must know before I start writing my will

Write your will with full knowledge of the facts

Inheritance law is a complex subject. This guide is obviously not intended to be an exhaustive summary. However, it is useful to review the 12 points mentioned below before starting to draft your will.

It goes without saying that this information does not replace personalized advice tailored to your particular situation.

1. 1. Your holographic will will only be valid once you have it in full hand-copied, dated and signed.

2. 2. Your will will logically be based on your current situation. We therefore advise you to amend your will in the event of significant changes in your financial or family situation.

3. 3. If you are married or in a registered partnership, it will be essential to liquidate your matrimonial property regime before you can determine what is part of your estate.

4. 4. You can revoke your will at any time.

5. 5. Your spouse and descendants are, with rare exceptions, your compulsory heirs, which means that they must imperatively receive a share of your inheritance. This share is called the statutory inheritance.

6. 6. If your will has the effect of not not respecting hereditary reserves, it could potentially be challenged in court by the injured heirs.

7. 7. Each spouse or registered partner must write their own will, a joint will is not valid.

8. 8. Payments (other than insignificant amounts) that you made during your lifetime to your descendants are presumed by law to have been made as advances on inheritanceThis means that they will be taken into account at the time of your death in determining the respective shares.

9. 9. Donations made to third parties within five years preceding the death, with the exception of customary gifts, may be contested by your compulsory heirs if they have the effect of infringe legal reserves.

10. 10. Your heirs have in principle three months from the date of knowledge of the death to possibly refuse the inheritance, otherwise it is deemed accepted. Within this period, however, they may request an inventory profit in order to determine whether the debts exceed the assets.

11. 11. Pension assets The 2nd pillar and 3a pillars are not part of the estate. They will be acquired by the beneficiary(ies) provided for by your pension institution.

12. 12. Each canton receives a inheritance tax the rate of which depends on the relationship with the deceased. Very often, spouses, registered partners and direct descendants are exempt from tax.

3) Is it mandatory to go through a lawyer or a notary?

The freedom to choose

In Switzerland, there are two main ways to write a will (except in emergencies):

• • The first is to surrender at a notary or public officer's office who will draw up your will in the presence of two witnesses. This is called a public will.

• • The second is to write your last wishes independently, this is the holographic will.

a) The public will

A public will is a deed of disposition of last wishes received by a public officer or a notary with the assistance of two witnesses.

The testator indicates his wishes to the civil servant or notary who transcribes or has these wishes transcribed into a document. Then the testator ensures that the document corresponds to his wishes and declares it; this is the verification phase. This verification can take place in two ways: either the testator reads the document himself and confirms his verification by signing the will, or the civil servant or notary reads it to him in the presence of two witnesses, and the testator then declares that the document contains his last wishes.

Then, the public officer or notary dates and signs the document, thus conferring its authenticity. As for the two witnesses, they confirm that the testator has verified the contents of the document and certify that the testator appeared to them capable of making a disposition by countersigning the document.

This will is valid as long as it has not been replaced by another will which may take any other form, and which would revoke the previous provisions or be irreconcilable with them.

 

wheat holographic will

The holographic will is one of the most common forms of will in Switzerland. It allows any person to draw up their last wishes independently, without the intervention of a notary.

Simple, economical, and legally recognized, it must nevertheless meet certain conditions of validity to be enforceable against heirs and avoid any disputes. A holographic will is a document written entirely by hand by the testator (the person writing the will), expressing their last wishes regarding the distribution of their assets after their death. Unlike a public (notarized) will, it requires neither a notary nor witnesses.

A holographic will is valid as long as it meets certain requirements of form and content:

• • The document must be entirely handwritten by the testator, without the use of a computer, a typewriter or a third party. A typed will, even if signed, has no legal value in Switzerland.

• • It is mandatory to indicate the date of writing. It should be noted that under theart. 520a CC, an undated will would be voidable only if it is impossible to determine the required temporal data in any other way and the date is necessary to judge the testamentary capacity of the author of the act, the priority between several successive dispositions or any other question relating to the validity of the will.

• • Signature must be affixed at the end of the document to certify its authenticity. It confirms that the wishes expressed are indeed those of the testator.

c) Advantages and limits of the holographic will

The advantages of the holographic will are multiple. The first is obviously the simplicity and lack of formalismSince all the testator needs is a sheet of paper and a pen to write their will, a holographic will offers great flexibility and freedom in expressing their last wishes. The testator can revise their will as many times as they wish, as long as each new version meets the validity criteria mentioned above.

As for the disadvantages, the first to mention is the risk of errorFurthermore, inaccurate or imprecise wording can lead to problems of interpretation. It should also be noted that a handwritten will is not always kept with a trusted relative or registered in the wills registry. Therefore, there is a risk of it being lost or torn by the person who finds it at the time of death.

That is why it is strongly advised, even for a holographic will, to seek legal advice from a specialist to ensure that your will will not be a source of conflict between the heirs at the time of death.

4) Where should I keep my will?

The importance of a suitable storage location

In the case of a public will, your will can be kept with the notary.

In the case of a holographic will, several choices are available to you for the preservation of your will, it being specified that Swiss law does not impose any obligation.

You can thus:

- Keep it at home, but with the risk that it will not be found at the time of death or torn up by an heir who is not satisfied with the contents of your will;

- Keep it with a loved one who will be responsible for handing it over to the competent authority at the time of death;

-Keep it with the executor If you have appointed one; if you appoint a lawyer, they will also have the option of registering your will with the Central Register of Wills (RCT) for added security. This is a database that centralizes information regarding the existence and location of wills.

– It is finally possible to submit one's last wishes to theauthority that the cantons are required to establish under the law (justice of the peace or notary depending on the canton).

« Note that it is not recommended to deposit your will in a bank safe deposit box in your name. Indeed, upon your death, banks will require a certificate of inheritance, This could hinder access to your safe deposit box and therefore the discovery of the will.

It should also be emphasized that in Switzerland, anyone who has been entrusted with a will or who has discovered one must hand it over to the competent authority without delay upon becoming aware of the death. Failure to comply with this requirement can have serious consequences for the person who violates their duty to hand over the will to the authorities.

 

5) How can I change my will?

Your will will logically be based on your current situation, which is likely to change over time. This may be true for your family situation, for example, in the event of the birth or death of family members, or your financial situation (purchase of real estate, creation of a business, etc.).

It is strongly recommended that you amend your will when changes occur, to ensure that it is always suitable for your situation.

Any changes must always be made in writing and by hand., accompanied by a date and signature. In the event of changes to existing provisions, it is important to specify whether the new text simply replaces the old will or whether it only modifies certain parts. These changes can be noted on the existing will or on a separate sheet, taking care to carefully date and sign them.

In the event of significant changes, it is often simpler to revoke your old will and write a new one. To avoid any confusion, the new will should specifically state that all previous versions are revoked.

"Finally, it should be noted that if you wish to settle your estate or part of it by making binding provisions that can only be modified with the agreement of all parties concerned, you can conclude a succession agreement with one or more heirs. This document, which must be drawn up by a notary, is in fact a contract concluded between the testator and his heirs."

 

6) What is the hereditary reserve?

The hereditary reserve : a legal framework to respect in your will

La hereditary reserve is the minimum share of your inheritance that must be allocated to certain heirs, known as forced heirs.

The beneficiaries of this protection are your direct lineal descendants and your surviving spouse or registered partner.

The rest of your inheritance, which is called quota available, can be distributed freely according to your wishes.

“It should be noted that the reserved portion for parents disappeared with the amendment to Swiss inheritance law in 2023. Similarly, siblings and other distant family members are not forced heirs.”

a) How is the reserve calculated?

The share that must be passed on to descendants and/or the surviving spouse depends on your family situation at the time of death. This share is calculated as follows:

• • if you leave descendants only : they must receive at least 50% of the estate.

• • if you leave descendants in competition with your surviving spouse : your surviving spouse must receive at least 25% of the estate and your descendants at least 25% of the estate.

• • Finally, if you have no children but only a surviving spouse (or registered partner): if your parents are still alive (or their descendants in the event of their death), your surviving spouse must receive at least 37.5% of the estate. Otherwise, your surviving spouse must receive at least 50% of the estate.

The available portion, that is, the share of the estate that you can freely allocate by will, therefore varies according to these quotas. It is in all cases at least 50% of the estate since the reform of inheritance law in 2023.

b) Is it possible to deviate from the reserve?

The possibilities for deviating from the reservations provided for in the law are limited. These mainly concern the new provision applicable in the event of divorce or separation proceedings, the inheritance agreement, and finally disinheritance.

 

1. In the event of divorce proceedings :

In the event of divorce proceedings, it is now possible to remove the surviving spouse's reserve if at least one of these two situations occurs:

1. 1. The proceedings were initiated by joint application or continued in accordance with the provisions relating to divorce by joint application.

2. 2. The spouses lived apart for at least two years.

This assumes in any case to include a clause in his will by which the testator removes the hereditary reserve of his spouse.

2. Conclusion of a succession agreement :

A succession agreement, which is a contract signed by the testator and the heirs, can establish specific terms and conditions that circumvent the traditional reserved portion. However, this type of document requires the explicit agreement of all the heirs concerned and must follow strict formalities to be valid, including having been concluded before a notary.

3. Disinheritance :

According to the law, it is possible by disposition upon death to remove the reserve of a compulsory heir when the latter has committed a serious criminal offence against the deceased or one of his relatives or when he has seriously failed in the duties imposed on him by law towards the deceased or his family.

"For example, case law has established that a spouse who persists in a long-term adulterous relationship can be disinherited, or when a wife deprives her seriously ill husband of necessary care by imposing indecent living conditions on him. On the other hand, disloyal business conduct has not been deemed sufficient grounds to disinherit one's child."

7) The available quota: how to allocate it?

 

Inheritance versus legacy: understanding the legal difference

The available portion represents the part of your inheritance that you can freely dispose of.

Important: If you do not have any compulsory heirs, your available portion represents your entire inheritance.

There are several options available to you when allocating your disposable portion. For example, you can decide to follow the legal order of succession (which means that if you have a spouse and children, your inheritance will be shared between them).

"You can allocate your entire disposable portion to your spouse if you wish to favor them."

You also have the possibility to establish heirs or allocate legacies :

• • if you name heirs, this means that you designate people (natural or legal) of your choice as heirs. You can thus appoint your grandchildren, a relative or even a friend as heirs for a share of the estate. The appointed heir is a universal successor who will be responsible for any debts you may have, in the same way as the other co-heirs. He is part of the community of heirs, which means in concrete terms that he has a say in the decisions that should be taken in the administration of the estate.

• • if you wish to allocate property to a person without making them your heir, you have the possibility to allocate it to him a legacyThe beneficiary of a legacy does not legally become one of your heirs; he can simply claim the delivery of the legacy. Unlike an heir, he is not responsible for the debts of the deceased. Legacies are paid before the estate is divided.

You would like to allocate a portion of your available quota to a charity, what should you choose: a legacy or an heir institution?

It is becoming increasingly common to include in one's will a clause to support one or more charities at the time of death.

The question is whether it is more advisable to go through an inheritance institution or a legacy.

The answer varies depending on the size of the amounts involved and the number of heirs. It should be kept in mind that in the case of appointing an heir, the appointed body will be part of the community of heirs, and will therefore have the right to participate in all decisions concerning the succession, which may be poorly perceived by the other heirs. It is therefore often simpler to proceed by assigning a legacy. On the other hand, a person who has no close family should probably favor appointing an heir because a legacy assumes that there is at least one heir to deliver it.

If in doubt, it is strongly recommended to seek advice from a professional, or directly from the organization you wish to favor.

8) How do I handle donations made during my lifetime?

Donations made to his descendants

The reporting obligation: balancing the benefits between heirs

It often happens that one wishes to favor one or more of one's heirs during one's lifetime by granting them a patrimonial advantage, for example a donation.

The question that arises is whether gifts made to an heir during his lifetime should be taken into account or not at the time of opening the succession.

If this is the case, this gift is said to be reportable, which means that it must be reintegrated into the estate at the time of death. The purpose of the inheritance report is therefore to guarantee equal treatment between legal heirs.

This includes financing expensive studies, assistance with purchasing real estate, and assistance with starting a business. If nothing is mentioned, these benefits will be considered advances on inheritance and must therefore be compensated during the distribution of the estate.

It is possible to modulate this obligation by exempting certain heirs from the report in one's will or, on the contrary, by specifying that a gift must be subject to the inheritance report.

In practical terms, it is therefore strongly advised to indicate in your will whether a gift made to an heir will be subject to collation or not at the time of death. This will help avoid possible disputes..

Donations made to third parties

The action for reduction to protect compulsory heirs

Finally, it is appropriate to distinguish between the inheritance relationship as described above, which aims to ensure equality between heirs, and the action for reduction which can be brought by heirs who do not receive the amount of their reserve.

Under theart. 522 CC, heirs who do not receive the amount of their reserve have the right to reduce the amount of gifts which exceed the available portion.

In practical terms, donations made to third parties in the five years prior to death (excluding customary gifts) can be challenged by the heirs if they have the effect of infringing on their reserved portion of the estate.

9) I want to favor my spouse, how do I do this?

It is common for spouses to want to benefit each other as much as possible in the event of death. For example, spouses may want children not to inherit until both parents have died so that the surviving parent receives the greatest benefit.

To do this, spouses have two main legal instruments: the marriage contract and the will.

a) The marriage contract

In the event of death, it is essential to liquidate the spouses' matrimonial property regime before being able to open the deceased spouse's estate. The law provides that the spouses' matrimonial property regime is dissolved automatically on the date of the death of one of them.

The liquidation of the matrimonial property regime depends on the matrimonial property regime chosen by the spouses, it being recalled that if the spouses do nothing they are automatically subject to the regime of participation in acquired property. According to this regime, all assets that constitute the spouses' fortune must be attributed to the mass of separate property or acquired property. Separate property mainly consists of assets belonging to a spouse before the marriage and those that fall to them as an inheritance or gift. The other assets are acquired property that must be divided at the time of the dissolution of the matrimonial property regime.

If the spouses do nothing, the acquisitions will be divided equally between them at the time of death. However, it is possible, by marriage contract, to provide for another participation in the profit. In practice, the spouses can thus provide by marriage contract that in the event of dissolution of the regime by the death of one spouse, all the profits will revert to the surviving spouse. However, be careful that this distribution does not have the effect of harming the reserved portion of non-common children or their descendants which is protected by theart. 216 al. 2 CC.

b) Allocation of the available portion to the surviving spouse

Then, the spouses can, by will or inheritance agreement, decide to allocate the entire available portion to the surviving spouse, the available portion being made up of the part of the estate that a spouse can freely dispose of. In order to maximize the share going to one's spouse, it is therefore possible to reduce one's children to their legal reserve, namely the minimum share of the estate that they must receive by law, and allocate all the rest to one's spouse.

c) Clauseusufruct

Finally, Swiss law allows you, in addition to benefiting your spouse by leaving them the entire available portion, to assign them, by will or inheritance agreement, the usufruct over the entire portion devolved to the common children. In concrete terms, this means that your common children will only receive the bare ownership of the property in question (i.e. the ownership without the use and enjoyment). It should be noted that in the event of remarriage of the surviving spouse or registered partner, this usufruct ceases automatically.

It is therefore essential, if you wish to benefit your spouse in the event of death, to draw up a will in which the available portion will be allocated to your spouse while providing for a usufruct in their favor.

10) Why appoint an executor?

 

The executor: a guarantor for the implementation of your last wishes

The executor of a will helps you avoid potential conflicts between your heirs after your death. They play a crucial role in carrying out your final wishes and ensuring the harmonious management of your estate, with their primary mission being to ensure that your final wishes are respected.

Named specifically in your will, this trusted third party's mission is to inventory assets, settle debts, resolve administrative and tax issues, and ensure the distribution of assets in accordance with your provisions. Their involvement is particularly valuable when the estate is complex (diverse assets, family business, assets abroad) or when family tensions risk complicating the division.

The executor can be a relative, a friend, or preferably a professional such as a notary, a lawyer, or a trustee who will provide legal and tax expertise. They generally receive compensation from the estate. Their appointment is revocable during your lifetime, but after your death, the heirs can only remove them for serious reasons and upon decision of the competent authority.

"By appointing an executor, you offer your heirs invaluable support during a difficult time while minimizing the risk of conflicts that could delay the settlement of your estate for years."

11) Can I decide what assets will go to my heirs?

Sharing rules: avoiding conflicts between heirs

Even with a will that clearly names your heirs, without specific instructions on the distribution of specific assets, your loved ones will have to negotiate the division of the estate among themselves.

These discussions can be long, costly and contentious, particularly when dealing with real estate or items of high sentimental value.

If the heirs cannot agree on the division of the property, each of them can submit the dispute to the judge who will proceed with the division. According to the law, the judge must divide the property into different parts when it is to be distributed among the heirs. In the absence of agreement, the distribution is done by drawing lots (art. 611 al. 3 CC).

You have the option of including sharing rules in your will, that is, specifying which assets should go to which heir. This helps avoid misunderstandings and potential disputes. These sharing clauses can also provide for balancing mechanisms if certain assets have unequal values, such as cash payments (financial compensation) between heirs, thus ensuring a fair distribution in accordance with your wishes.

12) What will be the tax treatment of my estate?

Tax aspects of inheritance: a crucial issue that should not be overlooked

Inheritance tax in Switzerland

In Switzerland, inheritance tax is levied exclusively at the cantonal level, which leads to significant disparities between the different cantons.

The tax rate varies considerably depending on the deceased's canton of residence, the relationship to the heir, and the value of the assets transferred. Some cantons, such as Schwyz and Obwalden, have completely abolished this tax, while others, such as Vaud and Neuchâtel, maintain significant rates of up to 50% for non-relatives.

Most cantons completely exempt the surviving spouse and direct descendants (children, grandchildren), but apply a progressive scale to other heirs, with rates that are higher the more distant the relationship.

Cohabitants are generally considered third parties without family ties and therefore subject to heavy taxation, although some cantons grant them tax relief after several years of living together.

It is therefore essential, for example for unmarried partners who wish to provide for each other, to consider the tax implications of inheritance tax. Solutions exist to reduce this tax, notably by designating one's partner as the beneficiary of survivor's pensions in the event of death. In all cases, it is advisable to seek advice from specialists and to check with one's pension provider regarding available options.

Foreign inheritance tax

Each state is free to choose how it taxes inheritances. Some countries tax inheritances heavily, while others exempt them completely.

It is therefore advisable to be well informed when you own property located abroad or when some of your heirs live in a country other than Switzerland.

For example, France taxes inheritance beneficiaries who have been resident in its territory for more than 6 years. In concrete terms, this means that if a Swiss person living in Switzerland dies, their descendant who has been living in France for more than 6 years will be taxed according to French rules on their share of the inheritance, whereas they would have been completely exempt from tax if they had been living in Switzerland.