Lawyer Testaments

To create a testament in Switzerland, you must first meet certain requirements. You must be at least 18 years old and of sound mind. In Switzerland, a person is considered to be of sound mind if they are mentally capable of acting rationally.

Individuals suffering from mental disabilities or under the influence of drugs or alcohol cannot create a testament. A testament created under the influence of alcohol or drugs is therefore invalid, as the testator is not of sound mind at the time of creation. However, this lack of capacity must be asserted and proven through an action of nullity.

How and when you create a testament is up to you. There is no legal obligation to create a testament. If a deceased person has not written a testament, the rules of intestate succession under Articles 457 to 640 of the Swiss Civil Code (SCC) apply to distribute the estate among the legal heirs and according to the prescribed inheritance quotas. However, if you want to ensure that your last will is respected after your death, we recommend that you write a testament. This helps avoid potential inheritance disputes by making all necessary arrangements during your lifetime.

The holographic testament

The holographic testament, also known as the handwritten disposition, is the most common form of testament. It is a handwritten declaration of the testator's last will. However, for a holographic testament to be valid, it must meet certain formal requirements under Article 505 SCC. For example, it must contain the exact date of drafting and the signature of the testator, and the word "testament" must appear in the title.

The public testament

A public testament is a testament that is drawn up by a notary in the presence of two witnesses, in accordance with Articles 499 to 504 SCC. The notary records the testament confidentially. The two witnesses do not know the contents of the testament but merely attest to the testator's capacity. After its creation, the testament is deposited with the competent authority.

The oral testament (emergency testament)

The emergency testament, according to Article 506 SCC, is an oral testament that, as the name suggests, may only be used in emergencies, i.e., in cases of imminent danger. It can be made orally before two witnesses. Their task is to record the testator's last will in writing, including the date of creation, sign the document, and submit it to the competent court. They must also explain the extraordinary circumstances that led to the creation of an oral testament. If the testator subsequently becomes able to dispose of their estate in another form, the emergency testament loses its validity within 14 days (Article 508 SCC).

The testator can amend or revoke their testament at any time. In the case of a handwritten testament, the changes must be dated and signed. If several changes are to be made, it is advisable to create a new testament.

Under Swiss law, legal heirs cannot be disinherited by testament unless there is a valid reason for disinheritance within the meaning of Article 477 SCC. Spouses, registered partners, and descendants generally have a legal entitlement to their so-called compulsory share. To lose this entitlement, there must be a valid reason, which the court decides upon if the disinherited person contests the testament.

Tip: It is possible to appoint only one heir in a testament. However, this does not apply to compulsory heirs entitled to a legal share, such as the children of the testator. Even if a sole heir is appointed, the children will still receive their legal share. Consult an inheritance law expert to find and formulate legally valid and fair provisions for your testament.

When creating a testament, especially a notary or a lawyer can assist you.

A lawyer can provide advisory assistance in creating a testament and ensure that your wishes are implemented legally correctly. Especially in cases of complex financial situations or specific concerns, consulting a lawyer can be helpful.

A notary can help you create a legally binding testament. The notary ensures that the testament is created according to legal requirements and notarizes it.

Notary fees are regulated in a tariff. These tariffs may vary from canton to canton, as they are approved by the cantonal council. Furthermore, the respective effort and your assets also play a role. Therefore, a blanket statement about the cost of creating a testament is not possible.

In the Canton of Zurich, for example, the fee is determined as follows: It is based on the time required but is at least 0.5% of the net assets affected by the amendment and at most 0.5% of the testator's total net assets. The decisive factor is always the time of the testament's creation. For example, if the estate to be inherited amounts to CHF 200,000 at the time of testament creation, the notary's costs should not exceed CHF 1,000. However, since the exact amount depends on the effort involved, it is advisable to consult the notary beforehand.

The costs at a law firm are similar to those at a notary's office. Lawyer fees are also regulated by tariff and are usually billed based on time spent. Therefore, the complexity of the case and the effort involved in the consultation are crucial factors.

Tip: Many law firms offer a free initial assessment of your testament. In such a conversation, you will get a good overview of how intestate succession works and whether your planned testament meets all requirements. In straightforward cases, this discussion may be sufficient, and you can save the costs of a consultation.