Частные клиенты в Швейцарии… Такая тема не может не заинтересовать людей, занимающихся международным бизнесом, и не только. Настоящая публикация — одна из многих, в которых раскрывается такая же информация и по другим юрисдикциям, причем структурировано. Основные разделы этой структуры:
- достижения последнего времени;
- индивидуальное налогообложение;
- трасты, фонды и благотворительные организации;
- вопросы, связанные с выполнением требований;
- наследование и завещание;
- правосубъектность и доверенность;
- семья, брак и гражданские партнерства.
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Have there been any notable recent developments in the provision of private client and offshore services in your jurisdiction, including any regulatory changes or case law?
In 2017 Switzerland implemented the Organisation for Economic Cooperation Common Reporting Standard (CRS) and introduced domestic legislation relating to the automatic exchange of financial information. As a result, from 2018 onwards, Switzerland will exchange information on beneficial owners of Swiss bank accounts that are residents of a CRS partner state in accordance with that legislation.
Residence and domicile
How is residence/domicile determined for tax liability purposes in your jurisdiction?
‘Domicile’ (or ‘residence’ – both terms are synonymous under Swiss tax law) is defined as the place in which an individual resides with the intention to remain for a lasting period (Article 3 (2) of the Federal Direct Tax Act). The notion of tax domicile is a self-standing concept, but is similar to the notion of domicile under Swiss civil law.
According to case law, for tax purposes, a ‘domicile’ is defined as an individual’s centre of vital interests. Criteria such as family ties, social life and economic links are used by the Swiss Tax Administration to determine an individual’s domicile.
Nevertheless, an individual will be subject to Swiss taxation on his or her worldwide income (on a pro rata basis only) when he or she stays in Switzerland without any notable interruption for:
- at least 30 days while performing a gainful activity; or
- 90 days where no gainful activity is performed.
Describe the income tax regime in your jurisdiction (including tax base, rates, filing formalities and any exemptions, reliefs or deductions).
Income tax is levied at the federal, cantonal and municipal levels.
Under the general income tax regime, Swiss tax residents are taxed on their worldwide net revenues. However, exempt from the taxable basis are revenues stemming from:
- immovable properties located abroad and held directly;
- foreign enterprises (essentially partnerships); and
- permanent establishments located outside Switzerland.
Income stemming from a qualified participation (at least 10% of share capital) benefits from a privileged regime; namely, a tax rebate of 40% at the federal level and 30% to 40% at the cantonal and municipal levels, depending on the canton of domicile. Further, income arising from specific types of life insurance can also benefit from a tax relief.
Non-Swiss residents are liable to income tax on revenues relating to:
- immovable property situated in Switzerland (including an imputed fiscal rental value);
- an enterprise located in Switzerland (essentially partnerships); or
- a permanent establishment located in Switzerland.
Swiss tax law provides for various deductions, including:
- social security contributions;
- pension contributions;
- passive interests (under certain limitations); and
- donations to Swiss tax-exempt charities (up to 20% of the taxable revenue at the federal level).
The maximum income tax rate is 11.5% at the federal level. However, Swiss tax law also grants the cantons considerable freedom to set the applicable income tax rate at their level. The tax rate is progressive in all cantons. The global applicable income tax rate can rise to approximately 45% in certain cantons. Further, even tax-exempt assets (eg, immovable property located abroad) are considered in order to set the applicable tax rate.
The so-called ‘lump-sum’ tax regime can be applied to foreigners who have performed no gainful activity in or from Switzerland in the 10 years preceding their relocation to Switzerland. No remunerated activity can be performed in Switzerland by taxpayers while they are subject to this regime. Although the taxable basis is determined on a lump-sum basis, the minimum taxable basis equates to seven times:
- the rent paid by the taxpayer for his or her principal residence in Switzerland; or
- the fiscal rental value of the immovable property that serves as principal residence.
In addition, the minimum taxable basis is Sfr400,000 at the federal level (Article 14 (3) of the Federal Direct Tax Act). However, each canton is competent to set a minimum amount for cantonal and communal income tax purposes. Further, the aggregate amount of the revenues generated by the taxpayer’s Swiss assets (eg, investments in Swiss companies or Swiss-located immovable property) in any tax year and the foreign revenues for which the taxpayer has requested the application of a double tax treaty must not exceed the lump-sum taxable basis.
Swiss tax residents, as well as non-Swiss residents who are liable to Swiss income tax on a limited basis (eg, immovable property in Switzerland), must file their tax return once a year in their canton of domicile.
Describe the capital gains tax regime in your jurisdiction (including tax base, rates, filing formalities and any exemptions, reliefs or deductions).
Movable and immovable capital gains are tax exempt at the federal level (Article 16 (3) of the Federal Direct Tax Act), unless the taxpayer is deemed to be a professional trader.
At the cantonal and municipal levels, only movable gains are tax exempt. Immovable gains are subject to real estate gains tax at a rate that decreases depending on the number of years that the property is held.
Swiss tax law contains anti-abuse rules – notably, where a participation is transferred to an entity controlled by the taxpayer or where a distribution of the excess cash in a company at the time of sale to a third party takes place within the five years that follow the transaction (the sale of a so-called ‘cash box’) (Article 20a of the Federal Direct Tax Act), in which case the capital gain realised constitutes taxable income.
Inheritance and lifetime gifts
Describe the inheritance and gift tax regime in your jurisdiction (including tax base, rates, filing formalities and any exemptions, reliefs or deductions).
Inheritance and lifetime gift taxes are levied at the cantonal and municipal levels only. The applicable rules and tax rate thus depend on the applicable cantonal tax law. All cantons, excluding Schwyz, levy inheritance and gift taxes.
The applicable cantonal tax law is determined by the last domicile of the deceased or the domicile of the donor at the time of the gift.
In principle and when applicable, inheritance tax is levied on the deceased’s worldwide estate irrespective of the situs of the assets, except for immovable property or a permanent establishment located abroad. Gift tax is levied on the fair market value of the gifted assets. The gift of an immovable property located abroad is exempt from Swiss gift tax.
The applicable tax rate depends on the kinship of the deceased or donor and his or her heirs or donee. No tax is levied on inheritance or gifts made in favour of a spouse. Most cantons (excluding Vaud, Neuchâtel and Luzern) also exempt inheritance and gifts made to direct descendants. However, Geneva applies inheritance and gift taxes to direct descendants where the deceased or donor is taxed under the lump-sum tax regime.
Procedural rules depend on the applicable cantonal law. In general, the deceased’s heirs and – in some cantons – the executor must file an inheritance inventory with the cantonal tax administration reporting all of the deceased’s assets. All heirs are jointly liable for the payment of inheritance tax.
For the purpose of gift tax, the donor and the beneficiary must report the object of the donation.
What taxes apply to individuals’ acquisition and disposal of real estate in your jurisdiction?
Transfer tax is levied by the canton in which the transferred immovable property is situated (including in certain instances, the location of indirect transfer). The transfer tax is due by the acquirer and in principle, is automatically levied on the sale price by the notary or the state. The tax rate depends on the applicable cantonal rules and in most cases, is situated between approximately 0.5% and 3.3%.
Real estate gains tax is also levied by the cantons in cases of a transfer of immovable property. The transfer of a company holding mainly immovable assets can also trigger real estate gains tax.
The taxable gain is determined by the difference between the acquisition cost (plus any subsequent investment that has increased the property’s value) and the value of the immovable property upon transfer (often determined by reference to the sale price).
The applicable real estate gains tax rate depends on the canton in which the immovable property is located. The applicable rates are proportional to the period of ownership of the property and decline over time.
Under certain circumstances, real estate gains tax can be deferred (eg, upon inheritance, divorce or reinvestment of the sale proceeds in order to acquire real estate serving as principal residence).
Non-real estate assets
Do any taxes apply to the acquisition and disposal of other assets apart from real estate?
Value added tax is levied at the general rate of 7.7%. Reduced rates of 2.5% or 3.7% are applied on the supply of essential products such as tap water, grains, foodstuffs (excluding restaurant supplies and alcoholic beverages) and medication, and on accommodation services (ie, in the hotel sector).
Other applicable tax regimes
Are any other direct or indirect tax regimes relevant to individuals?
All Swiss cantons levy wealth tax. Under the general regime, wealth tax is levied on the taxpayer’s worldwide net assets, with the exception of immovable properties located abroad. The applicable tax rate is defined by each canton on a progressive basis and can reach 1% in certain cantons. Immovable properties located abroad are also considered when setting the applicable tax rate. Wealth tax is also levied for taxpayers taxed under the lump-sum regime. In most cantons, the taxable basis is a multiple of the income tax basis set on a lump-sum basis.
Some cantons provide for a so-called ‘tax shield’ where a taxpayer’s income and wealth tax burden exceeds a certain portion of his or her taxable income.
Withholding tax is levied at a rate of 35% – notably, on dividends paid by Swiss companies and interest paid on bonds issued by Swiss entities. Withholding tax is fully refunded to Swiss residents having correctly reported their revenues in their annual tax return.
Are there any special tax planning considerations for individuals with a link to your jurisdiction?
When taking up residency in Switzerland, individuals should examine the tax regime applicable in their future canton of residence. Important differences exist between the Swiss cantons (or even municipalities), especially with regard to the tax rate applicable to income and wealth tax, as well as in relation to inheritance and gift tax regimes.
Foreigners considering residency in Switzerland who intend to settle a trust (eg, for estate-planning purposes) should do so before relocating to Switzerland. Trusts settled while an individual is a Swiss resident generally are not recognised for tax purposes. The characteristics and nature of the trust should also be carefully examined to ensure that the trust is recognised for Swiss tax purposes.
Trusts, foundations and charities
Are trusts legally recognised in your jurisdiction? If so, what types are available and most commonly used?
The concept of a trust does not exist under Swiss law. Therefore, it is impossible to settle a trust under Swiss substantive law.
However, since the ratification of the Hague Convention on the Law Applicable to Trusts and on their Recognition 2007 (known as the ‘Hague Trust Convention’), the Swiss courts have recognised trusts that are governed by the law of another jurisdiction as a sui generis foreign legal construct.
To be recognised, a foreign law trust must fall within the definition provided by Article 2 of the Hague Trust Convention.
What rules and procedures govern the establishment and maintenance of trusts?
There is no Swiss substantial law on trusts. However, since the ratification of the Hague Trust Convention, Swiss and foreign settlors can establish a trust under the foreign law of their choice. In addition, certain provisions of the convention were transposed into national law under the Federal Private International Law Act. The act gives the settlor substantial freedom to choose the law that will apply to the trust and if no such choice has been made, the law most closely connected to the trust will govern it.
According to Article 8 of the Hague Trust Convention, the law chosen by the settlor or, if no law was elected, the law most closely connected to the trust will govern the trust’s validity, construction, effects and administration.
How are trusts taxed in your jurisdiction?
The Hague Trust Convention and Swiss tax laws do not provide for the taxation of trusts. Nevertheless, the tax treatment of trusts under Swiss law is outlined in the August 2007 Taxation of Trusts Circular issued by the Conference of Cantonal Tax Directors (for an English translation, see here).
The taxation of trusts depends on the type of trust that was set up. The tax authority distinguishes between:
- revocable trusts;
- irrevocable discretionary trusts; and
- irrevocable fixed interest trusts.
Therefore, depending on the circumstances, it may be advisable to set up one particular type of trust rather than another. For example, revocable trusts are treated as transparent for tax purposes regardless of the settlor, but irrevocable discretionary trusts are in principle transparent only if the settlor was a Swiss tax resident at the time of the settlement.
According to Swiss tax law, a trust is not considered to be a legal entity; therefore, it cannot be considered a taxpayer subject to direct taxation in Switzerland.
However, the settlors and beneficiaries of a foreign trust may be liable to taxation with regard to the assets and income of the trust if they are resident in Switzerland when the trust is established or when distributions are made after they move to Switzerland.
As a result, a trust’s assets and income are allotted either to the beneficiaries of the trust on the basis that any distributions from the trust represent taxable income or to the settlor according to the principle of transparency.
For income and wealth tax purposes, the circular distinguishes between irrevocable and revocable trusts.
In principle, where the settlor has retained a certain form of (direct or indirect) control over the trust’s assets (eg, the settlor is a beneficiary of the trust or has the power to designate a new trustee), the trust will be considered revocable and thus transparent for tax purposes. In such a case, the assets of the trust are treated as belonging to the settlor and all income is formally attributed to him or her. As a result, the assets and income of the trust remain taxable on the settlor at his or her place of residence.
Regarding irrevocable trusts, the circular also distinguishes between irrevocable fixed interest trusts and irrevocable discretionary trusts.
In the case of an irrevocable fixed interest trust, the beneficiaries are – from a tax perspective – treated by analogy to a usufruct, as they hold a legally enforceable claim on the trust assets. Swiss resident beneficiaries are therefore subject to wealth tax on their part of the trust assets and income tax on an ad hoc basis.
In the case of an irrevocable discretionary trust, the beneficiaries are considered to have a mere expectation on the trust’s assets because the time and amount of any potential distribution are at the discretion of the trustees. Therefore, beneficiaries are not taxable for wealth tax on any share in assets of the trust; however, they will be taxed on any distributions received.
Foundations and charities
Are foundations and charities legally recognised in your jurisdiction? If so, what forms can they take?
Charitable organisations and foundations are legally recognised in Switzerland.
Pursuant to Article 154 of the Federal Private International Law Act, charitable entities are governed by the law of the country in which they are organised. Therefore, Swiss law may apply only to charities that are set up in Switzerland.
While a wide variety of Swiss legal entities (eg, foundations, limited liability companies and associations) can serve charitable purposes, most take the form of foundations or associations.
A foundation or charity is not determined by the charitable activities that it carries out, but rather on whether it fulfils the criteria required to establish the selected legal form.
Foundations may have any kind of defined purpose. However, not all foundations are charities because this depends on whether the foundation pursues a charitable purpose. Associations, on the other hand, must perform the basic function of pursuing a non-economic purpose.
‘Family’ foundations, which are established for the upkeep of family members, are prohibited in Switzerland.
What rules and procedures govern the establishment and maintenance of foundations and charities?
The two legal forms used for charities are foundations and associations.
Swiss foundation law is primarily governed by Articles 80 to 89bis of the Swiss Civil Code, which cover the establishment, organisation and supervision of a foundation, as well as its modification and dissolution.
In short, a ‘foundation’ is a legal entity comprising a pool of assets irrevocably committed to one or more defined purposes. Once established, the foundation acquires full legal personality and therefore becomes the owner of the assets endowed for the particular purpose.
The founders – which can be a Swiss, foreign or even legal entity, and may include states or international organisations – can create a foundation by public deed or testamentary disposition.
In order to establish a foundation, the founders must contribute the assets, which must be proportionate to the foundation’s purpose. Whether enough capital has been brought to the foundation to ensure its existence and the furtherance of its purpose will be verified by the competent supervising authority upon the constitution of the foundation. According to the Federal Supervisory Board for Foundation, a minimum initial capital of Sfr50,000 must be contributed. The foundation acquires legal personality once it has been entered in the commercial register.
Once created, the foundation board is the supreme governing body and is vested with management and executive functions, including the administration and representation of the foundation. Foundations must in principle appoint an external and independent auditor in Switzerland. Further, Swiss foundations are subject to governmental supervision.
Associations in Switzerland are governed by Articles 60 to 79 of the Swiss Civil Code, which deal with their establishment, organisation and dissolution, as well as the rights and obligations of their members.
In short, a Swiss association is a non-profit legal entity with full legal personality, which need not be registered and acquires legal personality as soon as the intent to exist as a corporate body becomes apparent from the articles of association. Associations are not subject to governmental supervision and their supreme governing body is the general meeting of members, which makes all important decisions and has all powers that are not vested in other corporate bodies of the association.
How are foundations and charities taxed?
Foundations and associations are taxed on their net profit and capital. The applicable tax rate is lower than the one applicable to corporate entities (4.5% at the federal level, plus cantonal and municipal taxes).
Charitable foundations or associations pursuing a public-interest purpose can be exempt from profit and capital taxes. A specific tax exemption must be granted by the cantonal tax authority; however, such an exemption is granted only if strict conditions are met – notably:
- The assets must be irrevocably attributed to the charitable entity and its purpose (no possible return to the founder).
- Further, the charitable entity must not conduct any business activity and must effectively pursue its charitable purpose.
Anti-avoidance and anti-abuse provisions
What anti-avoidance and anti-abuse tax provisions apply in the context of private client wealth management?
Following the long-standing case law of the Swiss Federal Supreme Court, the Swiss tax administration applies the general concept of abuse where an unusual structure is set up in order to save taxes.
Further, in 2017 Switzerland implemented the Organisation for Economic Cooperation Common Reporting Standard (CRS) and introduced domestic legislation relating to the automatic exchange of financial information. As a result, from 2018 Switzerland will exchange information relating to beneficial owners of Swiss bank accounts that are residents of a CRS partner state in accordance with that legislation.
Anti-money laundering provisions
What anti-money laundering provisions apply in the context of private client wealth management (eg, beneficial ownership registers)?
There are no beneficial ownership registers in Switzerland.
The Swiss Criminal Code defines ‘money laundering’ as an act:
“that is aimed at frustrating the identification of the origin, the tracing or the forfeiture of assets which the perpetrator knows or must assume originate from a felony or aggravated tax misdemeanour (which can be the case if the tax evaded in any tax period exceeds 300 000 Swiss francs)”.
Any person carrying out such an act will be sentenced to a maximum of three years’ imprisonment or a monetary penalty. In serious cases, the penalty can reach a maximum of five years’ imprisonment or a greater monetary penalty.
Switzerland is also a member of the Financial Action Task Force on Money Laundering, which has set out a number of recommendations. These include the minimum requirements that a system should meet in combatting money laundering and terrorist financing in order to be deemed adequate by international standards.
Further, the Anti-money Laundering Act 1997 applies to all financial intermediaries which, on a professional basis, accept assets that belong to third parties. As a result, trustees who conduct their business in Switzerland and directors of private benefit foundations or offshore companies performing business in Switzerland, regardless of the entities’ governing law or the location of the assets, are considered to be Swiss financial intermediaries and must comply with the Anti-money Laundering Act and its implementing regulations. These form part of the Swiss administrative law and are mandatory under Swiss law.
Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
Swiss succession law establishes a numerus clausus of dispositions by inheritance. Upon death, individuals may dispose of their property by will or by inheritance agreement.
A will is a unilateral arrangement that may be modified or revoked by the testator at any time. An inheritance agreement is an arrangement between the testator and one or more parties which can be modified only with all parties’ written consent.
Swiss inheritance law guarantees the principle of testamentary freedom. However, this principle is limited since legal heirs are entitled to an intangible part of the estate (so-called ‘forced heirship entitlements’). The forced heirship rights are:
- three-quarters of the succession right in the case of a direct descendant;
- half of the succession right in the case of a parent; and
- half of the succession right in the case of a surviving spouse or registered partner.
However, the abovementioned forced heirship amounts could be reduced in future as a legislative reform is currently pending.
Legal heirs can claim their forced heirship amount by way of a specific judicial action; however, they may also waive their forced heirship rights by means of an inheritance agreement.
What rules and procedures govern intestacy?
If a person dies without leaving a will or an inheritance agreement, assets not disposed of by the deceased pass on to his or her legal heirs.
The Swiss intestate regime is based on a parental system and the deceased’s nearest legal heirs are his or her direct descendants in equal portion. However, when the deceased dies without leaving any issue, the legal heirs are his or her parents. Predeceased parents are represented by their own issue (ie, brothers or sisters of the deceased). However, in the absence of any representative of the deceased’s parents, surviving spouse or registered partner, the legal heirs are the deceased’s grandparents. Predeceased grandparents are represented by their own issue (ie, the uncles and aunts, as well as the cousins, of the deceased person).
A surviving spouse or registered partner is considered to be a legal heir and will be entitled to:
- half of the deceased’s estate – the other half is divided between the deceased’s issue;
- three-quarters of the deceased’s estate – the remaining quarter is attributed to the deceased’s parents or their issue; or
- the entire succession when no father, mother or any issue of the deceased is alive.
If the deceased has no legal heir, the estate is attributed to his or her canton of last domicile, or the municipality designated by the cantonal legislation.
What rules and restrictions (if any) apply to the governing law of a will?
The succession of an individual last domiciled in Switzerland is governed by Swiss law.
However, foreign citizens residing in Switzerland may submit their succession to their national law (professio juris). A dual national who has both Swiss and foreign nationality and is residing in Switzerland may not elect foreign law to apply to his or her succession. However, this may be subject to change, as the Swiss Federal Council has proposed to amend the law in order for dual nationals to be able to elect foreign law as being applicable to their estate.
Irrespective of any choice of law, Swiss private international law provides that the administration of the estate (in particular, administration and enforcement measures) is governed by the law of forum (lex fori), which is in principle Swiss law when the deceased’s last domicile was Switzerland.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
A will can take three different forms:
- a will by public deed – made by a public official in the presence of two witnesses;
- a holographic will – this must be written entirely in the testator’s own hand; or
- an oral will – the testator’s declaration of his or her last wishes to two witnesses who then communicate it to an authority.
However, an oral will can be used only if the deceased is prevented from drawing up a will in another form – typically, in case of a life-threatening emergency.
In addition, an inheritance agreement (ie, an arrangement between the testator and one or more parties and which, contrary to a will, can be modified only with all parties’ written consent) is made by a public official in the presence of two witnesses.
Both wills and inheritance agreements can be registered with the Swiss Register of Wills in Bern and neither are public. These documents are opened by the competent cantonal judicial authority on the death of the testator and a copy of the testamentary provisions is communicated to the interested parties (eg, heirs, legatees and executors).
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
Two types of action can challenge the validity of a will or inheritance agreement:
- an action for the declaration of invalidity; and
- an action in abatement.
These actions can be taken only after the death of the testator.
An action for the declaration of invalidity pertains to the formal validity of a will or inheritance agreement (eg, rules on the capacity to dispose or on the form of the disposition).
An action in abatement relates to the material validity of a will or inheritance agreement (in particular, compliance with the forced heirship entitlements).
Both actions must be filed with a civil court within one year from the date on which the contesting party becomes aware of the grounds for nullity – notably, the infringement of his or her forced heirship rights.
How is the validity of a will established in your jurisdiction?
The validity of a testamentary provision can be challenged before a civil court.
If the validity of a will or inheritance agreement is not contested, it is deemed to have been validly drawn up.
In order to be valid, a testamentary provision must be drawn up under one of the forms prescribed by Swiss law. In addition, the testator must have been over 18 years old and fully capable of discernment at the time of the disposal.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
The validity of foreign wills and inheritance agreements is governed by the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 (known as the ‘Hague Testamentary Form Convention’), to which Switzerland is a party.
The Hague Testamentary Form Convention provides that a will is valid as to its form if it meets the requirements of the domestic law of:
- the place in which the testator wrote the will;
- the testator’s place of citizenship, either at the time that the disposition was made or at the time of his or her death;
- the testator’s place of domicile, either at the time that the disposition was made or at the time of his or her death;
- the place in which the testator had habitual residence, either at the time that the disposition was made or at the time of his or her death; or
- the place in which the real estate is situated, to the extent that immovable properties are concerned.
An official translation of a foreign will may be requested by the competent Swiss authority.
What rules and procedures govern:
(a) The appointment of estate administrators?
There are two types of administrator: executors and an official administrator.
The deceased may, by testamentary disposition, designate one or more individuals to be executors of his or her estate. Executors are automatically notified of their mandate by the competent authority on the death of the testator, but can decline the mandate within 14 days from the notification.
In certain circumstances (eg, following a prolonged absence of an heir or if the deceased’s heirs are unknown), the authority may nominate an official administrator to protect the heirs’ interest.
(b) Consolidation and administration of the estate?
All of the deceased’s assets and liabilities automatically pass to his or her heirs upon death. The heirs thus automatically become joint owners of the estate until it is formally divided between them. Until then, the estate falls under the administration of the executor. In particular, the executor must:
- establish an inventory of the deceased’s assets and liabilities;
- pay the deceased’s creditors;
- manage the estate’s assets;
- pay out legacies; and
- prepare the division of the estate in accordance with the deceased’s will.
Where the deceased has not designated an executor, all heirs in common (ie, the group of heirs) must administer the estate. The competent authority may also appoint one of the heirs as a representative of the group until the time of division.
(c) Distribution of the estate to heirs?
Unless the deceased has provided otherwise, the estate can be freely distributed among the heirs. However, the testator may prescribe – by will or inheritance agreement – for certain rules to apply to the division and formation of lots.
An heir may request that the estate be divided by a judicial authority at any time and generally when faced with a dispute among the heirs regarding the division process.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
In principle, the decedent’s debts are settled by the executor from the estate’s assets.
However, the heirs who have accepted the estate are personally, jointly and severally liable for the deceased’s debts. This liability also extends to their personal assets.
Inheritance taxes are due by the respective heirs and legatees personally. However, most cantonal inheritance tax laws provide that all heirs are jointly liable for the payment of the inheritance taxes due. In certain circumstances, some cantons may even provide that the executor is jointly liable with the heirs.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
Different planning measures can be envisaged in order to minimise the legal heirs’ forced heirship rights. For instance, spouses can agree on specific matrimonial property rules whereby the forced heirship portion of their common children is reduced. Legal heirs can also agree to renounce their forced heirship portion by way of an inheritance agreement.
Further, foreign citizens may elect their national law as applicable to their estate with the consequence that the Swiss forced heirship rules do not apply.
Capacity and power of attorney
Loss of capacity
What rules, restrictions and procedures govern the management of an individual’s affairs where he or she loses capacity and the grant of power of attorney in such cases?
In December 2008 Parliament adopted the Law on the Protection of Adults, which forms part of the Swiss Civil Code and came into force in 2013. The law gives individuals the right to participate in the medical decisions that affect them and to issue a healthcare or welfare proxy for when they become incapacitated.
Individuals may also specify the medical procedures that they agree with and designate a natural person authorised to make medical decisions along with the attending doctor in the event that they are incapable of judgement (the so-called ‘patient decree’) (Article 370 of the Swiss Civil Code).
Further, individuals may designate a natural person or legal entity to:
- be responsible for their personal care or the management of their assets; or
- act as their legal agent in the event that they become incapacitated (the so-called ‘advance care’ directive).
This person can be in charge of the individual’s private affairs, as well as business-related activities, and can be authorised to represent the individual generally or in relation to specific tasks only. The advance care directive must be executed under holographic form or public deed (Article 361 of the Swiss Civil Code).
Designated persons are supervised by the adult protection authority and can be ordered to file regular reports.
Where no such person has been designated by way and to the extent necessary of the advance care directive, a curator will be designated by the adult protection authority.
What rules, restrictions and procedures govern the holding and management of a minor’s assets until the minor reaches the age of capacity?
A minor’s assets are administered by his or her parents, provided that they have parental responsibility (Article 318 of the Swiss Civil Code).
The parents can use the income from the child’s property for the child’s maintenance, upbringing and education, and (where reasonable) for the household. Any surplus accrues to the child’s property.
Where there is no adequate guarantee that the child’s property will be diligently managed, the child protection authority may impose the necessary measures to ensure the child’s protection.
By testamentary disposition, a child’s statutory inheritance entitlement may be excluded from management by the parents (Article 322 of the Swiss Civil Code). In that case, a third party will be appointed to manage the minor’s forced heirship portion.
Marriage and civil partnerships
What matrimonial property regimes are recognised in your jurisdiction?
Swiss law provides for three matrimonial regimes:
- the statutory marital property regime of participation in acquired property, which is the matrimonial regime that applies by default (Article 196ff of the Swiss Civil Code);
- the community of property, which must be elected in a marriage contract (Article 221ff of the Swiss Civil Code); and
- the separation of property, which must also be elected in a marriage contract (Article 247ff of the Swiss Civil Code).
However, pursuant to Article 51(1) of the Private International Law Act, spouses may choose foreign law to apply to their marital property regime, provided that the application of the elected foreign law is compatible with Swiss public policy (Article 17 of the Private International Law Act) and insofar as the law is that of a state:
- in which they are both domiciled;
- in which they will both be domiciled after the wedding ceremony; or
- of which one of the spouses is a national.
Are same-sex marriages and/or civil partnerships recognised in your jurisdiction?
Same-sex couples can contract a civil partnership. Same-sex marriages contracted abroad are not recognised under Swiss law and are assimilated to a civil partnership.
An initiative to introduce same-sex marriage in Switzerland is currently under examination by Parliament.
Is there a legal distinction between legitimate and illegitimate children in terms of estate and succession planning?
Is there a legal distinction between natural and adopted children in terms of estate and succession planning?
Автор: Lucien Masmejan, Heini Rüdisühli, Mark Barmes