JURISDICTION
According to art. 538 §1 CC, succession commences in respect of the entire estate at the deceased’s last domicile.
Concerning international matters, art. 86 of the Federal Act on Private International Law (APIL) provides that Swiss judicial or administrative authorities of the last domicile of the deceased have jurisdiction to take the necessary measures to deal with the inheritance estate and to settle disputes relating thereto. Nevertheless, this provision does not affect the exclusive jurisdiction claimed by the state where real property is located.
In certain conditions, when a Swiss national domiciled abroad deceases, judicial or administrative authorities of his or her place of origin might have jurisdiction. For instance when the foreign authorities do not deal with such estate or when the deceased submits his or her estate, partially or in whole, to the laws of Switzerland.
On the other hand, if a foreign national domiciled abroad at the time of death had property in Switzerland, Swiss judicial or administrative authorities at the place where such property is located have jurisdiction to deal with the portion of the estate located in Switzerland to the extent that the foreign authorities do not deal with such portion of the estate.
APPLICABLE LAW
In accordance with art. 90 §1 APIL, the inheritance estate of a person who had his or her last domicile in Switzerland is governed by Swiss law. However, a foreign national may submit by will or inheritance contract his or her estate to the law of one of his or her national states. Such submission is void if, at the time of death, the deceased no longer had such nationality or acquired Swiss nationality.
The law applicable to the inheritance estate determines what is included in the estate, who is entitled to inherit and for what share, who is liable for the debts of the estate, which legal institutions of inheritance law may be relied upon, and which measures may be ordered and subject to which requirements.
In addition, the implementing details are governed by the law of the state whose authority has jurisdiction. Such law governs in particular conservatory measures and the distribution of the estate, including the administration by an executor.
Succession commences on the death of the deceased. Insofar as dispositions and divisions made during the deceased’s lifetime are relevant under law of succession, they are taken into account according to the condition of the estate as at the time of his or her death.
On the death of the deceased, the estate in its entirety passes by law to the heirs. Subject to statutory exceptions, the deceased’s claims, rights of ownership, limited rights in rem and rights of possession automatically pass to the heirs and the debts of the deceased become the personal debts of the heirs.
The legal and named heirs are entitled to disclaim the inheritance passing to them.
Nevertheless, there is a presumption of a disclaimer if at the time of his or her death the deceased had been officially declared insolvent or was manifestly insolvent.
The time limit for a disclaimer is three months since the statutory heirs learned of the death, unless they can show that they did not learn of their succession rights until later, and for named heirs, from the date they received official notification of the testator’s dispositions.
If an inventory has been drawn up as a precautionary measure, the disclaimer time limit for all heirs begins on the date on which the authority notified them that the inventory was complete.
Due to Switzerland’s federal structure, there is no centralized tax system valid for all cantons. As a consequence, tax legislation varies considerably from one canton to another, both in terms of core stipulations and tax rates and tariffs.
From a fiscal point of view, there should generally be no difference whether a person transfers assets during his/her lifetime or in the estate after the death.
Inheritance taxes and gift taxes, if any, are levied at cantonal levels. In Geneva, for instance, since 1st June 2004, there are neither inheritance taxes nor gift taxes on assets transmitted by succession or by donation inter vivos, to the extent that the transfer takes place between a deceased/donator and his/her descendants or ascendants or in the favour of the surviving spouse or the registered partner, unless the deceased/donator is or was in the benefit of a lump sum taxation.
Nevertheless, after the transfer of the assets, the heir or the done will be subject to wealth taxes, which are imposed at a cantonal level on the aggregate value of the net asset of the individual.
Potentially, the heir or the done could be taxed on capital gains on real estate transactions.
Please note that these are very general considerations and that more accurate information can be provided to you concerning your individual case.
