The inheritance legacy in switzerland

With a legacy, the testator favors a person without making him or her an heir. She is entitled to tangible assets, cash or real estate and land from the estate named in the will or inheritance contract. If the beneficiary is also entitled to inherit, he or she can disclaim the inheritance without losing the legacy. However, a bequest is also taxable in the same way as an inheritance.

We have compiled a list of when it still makes sense and what testator, community of heirs and legatees should know.

What does bequest mean or. Bequest?

If you are a beneficiary according to the legal succession or. a will beneficiary, you become heir with all rights and obligations. The situation is different in the case of a bequest (Art. 562 of the Swiss Civil Code), which is also known as a bequest. In this case, a testator bequeaths a certain amount or a certain amount of money to the beneficiary under a will or inheritance contract. Tangible assets (type. 563 CC). These can be, for example, pieces of jewelry, a painting or personal items such as the deceased's diaries. The legatee can also be, for example, a charitable organization.

In the event that the legatee defaults, the testator may name one or more substitute beneficiaries. Reasons for replacement can be u. a. be the disclaimer of the legacy or the predecease of the legatee. If the testator fails to name substitute beneficiaries, the bequest becomes part of the estate.

Difference between legacy and inheritance

The beneficiary, called legatee, does not become part of the community of heirs through the bequest. He has no claim to inheritance if he is not at the same time the beneficiary of the inheritance. Rather, he has-similar to the donation during his lifetime-a claim against the community of heirs for payment or surrender of the thing. He is not liable like heirs for the debts of the deceased and also does not assume any other obligations.

In the context of a bequest, the testator can also benefit third parties who do not belong to the family. It can be friends, neighbors or even animals.

What may be the content of a legacy?

There is no specification of what may be designated as a legacy. In addition to cash, securities, liens and tangible assets, rights can also be the subject of a bequest. This includes, for example, a right of residence or the usufruct of a machine.

The definition of an inheritance quota is also possible. In addition, insurance claims (Art. 563 II ZGB) and claims of the testator may be included in the bequest. The beneficiary does not always have to receive something with a bequest. Something can also be taken from him: Debts, for example.

Usufruct means an entitlement to the use of an asset, real estate or a machine. Ownership passes to the heirs, but the right to use the property passes to the beneficiary, at least for a fixed period of time. A constellation that often causes resistance among the heirs, since they can no longer freely dispose of the object or a property.

In a procuring bequest, a person is required to procure a specific item and deliver it to the actual legatee.

If the testator cannot decide which valuables and cash values to give to the beneficiary, he or she can waive the elective bequest. In exchange, he/she designates several bequest values between which the legatee can choose. He may choose one or more bequest values depending on the bequest.

When is a bequest useful?

Since a bequest often causes unpleasant surprises for the community of heirs, a testator should be aware of the consequences. Less controversial, on the other hand, are usually bequests to a charitable organization. Often animal shelters or protective organizations for children are given a bequest.

What is meant by advance bequest and subsequent bequest?

It is possible to be heir and legatee at the same time. This is the case if several people inherit and the testator wants to ensure that one co-heir receives a certain asset.

This donation by last disposition is called advance bequest. However, the compulsory portions of the heirs are not reduced by this. It is calculated including the bequest, which ensures that those entitled to a compulsory portion receive their legally provided portion.

If the testator has nevertheless violated the compulsory portions of legal heirs with his bequest, they can demand the reduction of the bequest and, if necessary, enforce it by legal action.

The legacy remains even if the heir renounces the inheritance. Of course, he/she also has the right to disclaim the legacy.

What is a division provision?

If the advance bequest of an heir was not clearly designated in the last will, it is assumed to be a partition provision. In this case, the heir does not receive the legacy as an advance legatee in addition to his or her share of the inheritance. Instead, it will be credited to his inheritance quota.

It is therefore particularly important that the will is carefully worded and checked by a legal expert. In case of doubt, the law presumes an intention to divide (Art. 608 ZGB) with the already described consequence of chargeability.

What is the advantage of a bequest?

With a bequest, testators can plan for the future of a certain tangible asset. This variant is popular among spouses. First of all, the surviving spouse will benefit as a so-called preliminary legatee and subsequently one of the children. For this purpose, a specific date can be set during the lifetime of the previous legatee. Otherwise, the legacy passes to the subsequent legatee, the selected child, upon his or her death.

Clear delimitation in the will necessary

A bequest can only be disposed of within the framework of a will or inheritance contract. The wording must be chosen without ambiguity so that it is clear whether it is a legacy or an inheritance. Since the latter also include the assumption of the decedent's liabilities as well as the costs of the funeral and the division of the estate, otherwise inheritance disputes are the result.

The compulsory shares must also be taken into account in the will, as a legacy may not reduce them. It is therefore advisable to consult a lawyer specializing in inheritance law when drawing up the last will and testament. You can also have your draft checked subsequently after you have handwritten the will. However, you must then write it again in case of formal errors or unclear formulations.

Tip: Of course, you can also draft your last will and testament without legal assistance. Note, however, that a formal error can lead not only to the invalidity of the bequest, but also of the entire will.

If this is not established until the will is opened, intestate succession takes effect. The bequest would lapse in this situation or. depends on the good will of the beneficiary of the compulsory portion.

What to do if the heirs do not surrender the legacy?

The legatee is entitled to receive the intended cash amount or the non-cash value or the inheritance. the transfer of the respective right. However, the heirs do not have to hand over the legacy without being asked if no deadline has been set. Therefore, it is important to specify a transfer date in the will (Art. 562 II ZGB).

If this requirement is missing, the bequest claim arises as soon as the heir has accepted the inheritance or, as the case may be, as soon as the heir has accepted the inheritance. can no longer disclaim it. As soon as the legatee demands the surrender, the heir is obliged to surrender the legacy.

The legatee is a creditor of the community of heirs and can only claim the restitution from them. The estate authority is not responsible for this.

Tip: The creditors of the testator and those of the heirs rank before the legatee (Art. 564 ZGB). You can also refuse to hand over the legacy for this reason.

How to get your legacy

Only 3 steps to the successful surrender of the legacy:

  • As the legatee, you should request the heirs to hand over the legacy. You must do this in writing with a deadline and by registered mail.
  • If there is no reaction or if the heirs refuse to hand over the legacy, they should be warned off. To do this, send the community of heirs a written and registered warning or instruct a lawyer to do so.
  • If the surrender is still outstanding, their only option is to file an action for performance against the heirs. Depending on the bequest, you can also claim damages for delay in this context (103 OR). For this you should in any case consult a specialist lawyer.

A legacy action becomes statute-barred upon the expiration of 10 years (Art. 601 CC). Therefore, a beneficiary should not wait too long if they do not receive the bequest.

The surrender is impossible even if the legacy is not in the estate and the testator has not designated a replacement. In this case the claim is forfeited. This also applies if the bequest cannot be handed over for legal or other reasons.

How a bequest should be formulated?

To avoid inheritance disputes due to unclear wording, you should attach importance to instructions that are free of doubt. When drafting a will, avoid elaborate explanations and historical justifications for the bequest. It is irrelevant in the context of the disposition why you have chosen the beneficiary and the subject of the bequest. Such distractions only cause questions at the reading of the will and encourage disputes among the parties involved.

A will should contain these details to avoid misunderstandings when bequeathing:

  1. Specify beneficiary person or charitable organization with full name and address
  2. Bequest object or. Bequest right with exact designation, item number, color, special characteristics, etc.
  3. Time limit until the bequest is handed over to the legatee
  4. Date of transfer in the case of a bequest after the fact

What should be considered in the formulation?

Formulate clearly and without ado: "Karl Schwyz receives as a legacy my carved chess set."

For example, it could seem unclear: "Since I will miss my good friend Karl Schwyz, he shall inherit my carved chess set."The reason: here it is not clear whether the donation is an inheritance or a legacy. Ineffectiveness can be fatal for the will.

Tip: It is therefore advisable to have the wording revised by an expert.

How to pay tax on a legacy?

The bequest is subject to inheritance tax according to value and relationship. In the case of charitable organizations, the bequest remains tax-exempt.

The calculation for natural persons follows that for the taxation of the inheritance: the closer the testator and legatee are related, the less inheritance tax is due. Contrast this with the value of the bequest. The following applies here: the higher the value, the higher the taxation.

Tip: Those who cannot bear the tax on the bequest in one lump sum should request a deferral from the tax office.

Conclusion: Participate in the estate with a legacy without being liable as an heir

With a bequest, the testator favors a person without conferring rights and duties to that person as heir. The legatee has a claim to the surrender of the legacy against the heir, or. the community of heirs. If they refuse to hand it over, the only remedy is an action for performance against the heirs.

In order to hand over the legacy as smoothly as possible, it is advisable to use clear wording with precise details of the persons, subject of the legacy, substitute legatee and handover date. Since errors in form and content can render the will invalid, the text should be checked by a specialist lawyer.

Leave a Reply

Your email address will not be published.