Should you write a will?

Swiss wealth planning | December 2018

Alexandre Genet

Financial Planner, Bordier

If the deceased made no arrangements in his or her lifetime, the law designates the heirs and the share of the inheritance that goes to each of them. Unfortunately, the statutory allocations do not always correspond to the deceased person’s own wishes. In Switzerland, there are two usual ways of expressing your last wishes: a will or a contract of inheritance.

The will is an important document because it allows its author to stipulate unilaterally how his or her assets are to be allocated after death. However, the bigger the testator’s family, the smaller his or her margin for manoeuvre will be because the minimum percentages payable to certain statutory or rightful heirs (child- ren, spouse and parents when there are no descendants) must be complied with. On the other hand, that portion of the estate not covered by the provisions of statutory entitlements and referred to as the “disposable residue” can be allocated freely.

A will only makes sense if its author wishes to diverge from the statutory provisions on entitlement. For example, if there are children and a spouse, and the deceased has died intestate, by law, the spouse will inherit one-half of the estate and the other half will be divided up in equal shares between the children. If the will diverges from the portions statutory heirs are entitled to, it does not by the same token cease to be valid. Statutory heirs in law do, however, have a right to contest provisions in the will and demand their share of the estate. If you so wish, you can also restrict your statutory heirs’ inheritance to the legally stipulated share of the estate and name another person as the heir to the disposable residue of the estate. Then again, you may make a bequest of an amount equivalent to the disposable residue to any person or organisation of your own choice.

The will likewise allows rules for division of the assets to be stipulated. You may also appoint an executor responsible for administering the estate in the light of the deceased person’s last wishes. Appointment of such an intermediary is recommended when liquidation of the estate appears difficult because of its scale or if a dispute seems likely to surface among the heirs.

Apart from a public or oral will, the holographic will is the commonest form. This document must be fully handwritten. The particular medium on which it is written matters little, but it cannot under any circumstances be signed by more than one person or written in another person’s hand. Additions or postscripts are permitted if they themselves are dated and signed in the prescribed forms. For the holographic will to be legally valid, several conditions must be met. The text must be written out entirely in the testator’s own hand and bear the date and indication of the place where it was written and the author’s signature. If you are afraid that your descendants may question your faculty of discernment, you should have your will officially certified. A will can be amended at any time. However, it is advisable to write a new one and declare that this new version supersedes all previous dispositions. It can also happen that an individual writes his or her will several times in a lifetime without any clarifying stipulation. The law then makes an assumption: any new disposition replaces the previous provisions unless it is clearly no more than a supplement. Situations and your own assessment of events may change with the passage of time. That is why it is important to make sure at regular intervals that your will is still up to date.

This document can be kept in a safe place in your own home or, against payment, deposited with a notary. In addition, all the Swiss cantons have an official department which makes sure the will is forwarded to the authorities responsible for opening it after the testator’s death. In addition, anyone who finds a deceased person’s will is required by law to hand it over to the responsible authority. In conclusion, a will can be revoked simply by destroying the document. You must then make sure that there are no other copies in existence, such as those that may have been previously lodged with a notary or with a cantonal authority.

This article is part of the Swiss wealth planning of December 2018, see also: