Be it a Swiss testator abroad or a foreign testator in Switzerland – cross-border inheritance cases are increasing. An overview of the revision of Switzerland's international inheritance law.
When is an inheritance case cross-border?
An inheritance case may have foreign connections in many ways. For example, an EU national domiciled in Switzerland passes away, or a Swiss national domiciled in Asia dies in Singapore. Or the deceased had a succession plan based on UK law, including trusts, in place or, as it is often the case, the deceased left behind assets in multiple jurisdictions.
In these cases, questions arise as to which national authorities have jurisdiction to deal with the estate (e.g., to grant a probate or to issue a certificate of inheritance) and which inheritance law applies to the estate (e.g. who are the legal heirs, who may be appointed as administrator and do forced heirship rules apply).
The revision of Swiss international inheritance law (PILA) aims to bring simplification and harmonization with European law (EU Succession Regulation).
Which jurisdiction is responsible to deal with the estate?
In contrast to other jurisdictions, Swiss inheritance law follows the principle of unity of succession (i.e., one court and one governing law for the entire estate). The estate should not be divided depending on the assets' locations.
As per the new law, a Swiss national residing abroad may exclude Swiss jurisdiction (i.e., he may appoint the competent authorities of his place of residence to handle his estate if he chooses the foreign law to be applicable to the estate; see Art. 87 para. 2 rev-PILA; Art. 91 para. 2 rev-PILA).
As before, if the deceased's last residence was abroad, the Swiss authorities are only exceptionally competent to deal with his estate. They now even have the possibility to decline jurisdiction if the authorities of a foreign national state of the deceased, the state of their last residence or, in the case of specific assets, the state of their location deal with the estate (Art. 87 para. 1 rev-PILA, Art. 88 para. 1 rev-PILA). This makes it easier for the descendants to handle the estate in just one jurisdiction.
A foreign national, who has his last residence in Switzerland and who chooses the law of his foreign national state to govern the estate, can now explicitly declare that State's authorities to be competent, thereby waiving Swiss jurisdiction (Art. 88b para. 1 rev-PILA).
Which inheritance law is applicable?
The fact that a particular jurisdiction is responsible to deal with the estate does not necessarily mean that the inheritance law of the said country applies to the estate.
In principle, the estate of a deceased person, whose last residence was in Switzerland, is governed by Swiss law. If the deceased had his last residence abroad, the estate is governed by the law referred to by the conflict rules of his country of residence. If the foreign conflict-of-law rules refer back to the Swiss conflict-of-law rules ("renvoi"), the substantive law of the country of residence is declared applicable (Art. 90 para. 2 rev-PILA). This puts an end to the assessment of the applicable law in such cases and avoids a "ping-pong".
However, if the Swiss authorities at the place of origin of a Swiss national who died with last residence abroad have jurisdiction, Swiss succession law continues to apply in the absence of any choice of law (Art. 91 para. 2 rev-PILA).
Foreign nationals domiciled in Switzerland can make a choice of law in favour of the inheritance law of their home country (Art. 90 para. 2 PILA). In the revised PILA, this option is now also available to Swiss dual citizens (Art. 91 para. 1 rev-PILA), although they cannot derogate from the Swiss provisions on forced heirship.
Conclusion
Unless a referendum is held, the revised provisions of the PILA will enter into force on January 1, 2025. The additional possibilities for structuring the estate are to be welcomed. However, despite the harmonization with European law, conflicts of jurisdiction will not be eliminated complete in the revised PILA.
Cross-border successions are often complex and require advice. MME's Private Clients team will be happy to assist you with all your international estate and succession planning as well as estate administration. We look forward to hearing from you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
