What is a community of heirs? Legal situation, forms, and useful information

If a person dies and leaves behind several heirs, these heirs automatically form a so-called community of heirs under Swiss inheritance law. This community of heirs always exists, regardless of whether the inheritance follows the rules of intestate succession or voluntary succession through a will or inheritance contract.

The rules for the creation of a community of heirs are set out in Article 602 of the Swiss Civil Code (ZGB). It reads as follows:

• The community of rights and obligations exists until the inheritance is divided.
• The community of heirs owns all inheritance assets and manages them jointly until the
• division.
  At the request of a co-heir, the division authority can appoint a legal representative.

In Switzerland, all heirs of a testator form a community of heirs. Within this community, the heirs jointly represent their economic interests. There are three forms of community of heirs: the reduced community of heirs, the continued community of heirs, and the community of heirs. The form of the community of heirs depends on the circumstances of its creation.

What is a continued community of heirs?

The continued community of heirs arises when the heirs unanimously decide to postpone the settlement of the estate until a later date. This form of community of heirs can drag on for years and occurs primarily when none of the heirs is in a hurry to divide the estate.

What is a community of heirs?

A community of heirs differs only slightly from a continued community of heirs. Here, too, the division of the estate is postponed, but the heirs jointly represent their economic interests in the respective assets as a community of heirs within the meaning of Article 336 of the Swiss Civil Code.

What is a reduced community of heirs?

A reduced community of heirs exists when some of the co-heirs have withdrawn from the community. This can be the case, for example, if a co-heir has received financial compensation for her share. The remaining heirs continue to form the community of heirs, which functions in a reduced form.

Until the estate is settled, all heirs of the community of heirs remain co-owners of the estate. Therefore, in a community of heirs, no co-heir can claim their individual share of the estate until the settlement. The heirs of a community of heirs also have the same rights and obligations. These are regulated in Articles 602 and 604 of the Swiss Civil Code. In particular, the community of heirs is jointly and severally liable for the testator’s debts (Article 603, paragraph 1 of the Swiss Civil Code).

Principle of Unanimity within the Community of Heirs

As long as the division of the estate has not been completed, the community of heirs must make all decisions concerning the estate unanimously, according to Article 653, paragraph 2 of the Swiss Civil Code. If, for example, a member of the community of heirs wishes to sell a piece of property from the inheritance, they must first obtain the consent of all other members.

However, there are the following exceptions to this principle of unanimity:

• Access to the estate can be transferred to a co-heir by power of attorney, allowing them to access the estate of the community of heirs individually.
• The authorized representatives can grant a power of attorney to a third party on behalf of the community of heirs.
• If all the requirements for managing the estate without authorization according to Articles 419 et seq. of the Swiss Code of Obligations are met, a co-heir can represent the community of heirs alone.

Special case: In exceptional cases, an heir can also be authorized to act alone without the consent of the other heirs. This is possible if the community of heirs is threatened with harm through inaction and this harm can be averted by the immediate action of a single co-heir. In this case, the co-heir can act in the interest of all without first having to obtain the consent of the entire community.

When can a community of heirs dispose of its inheritance?

The community of heirs cannot dispose of the inheritance immediately after its creation, but must wait until the competent authority has issued the certificates of inheritance. Certificates of inheritance can be issued for the entire community of heirs or for each individual heir. In the latter case, the authority issues a so-called partial certificate of inheritance. For a community of heirs created according to the rules of intestate succession, certificates of inheritance are usually issued quickly. However, if the community of heirs is established by a will or inheritance contract, the certificate of inheritance process usually takes longer.

What should I do if there are disputes within the community of heirs?

Inheritance disputes between heirs are unfortunately not uncommon, and it is advisable to seek legal advice in the event of an inheritance dispute. In the event of a dispute, heirs have various options.

One of these options is the so-called partition clause, which allows an heir to withdraw from the community of heirs in return for receiving a portion of the inheritance (Article 604 of the Swiss Civil Code). According to Articles 32 et seq. of the Swiss Code of Obligations (CO), it is also possible to appoint a representative to administer the estate. If the inheritance is jeopardized, for example, due to inactivity, a co-heir can decide on the partition without the consent of the others (Article 419 CO).

Tip: Another effective option is to involve a mediator to find a fair compromise between the heirs. Consulting a lawyer specializing in inheritance law can also help you understand and utilize your own rights and options within a community of heirs.

The community of heirs is not taxed as a whole, but individually for each heir. Therefore, each heir must pay their own inheritance tax. Tax liability also depends on the relationship between the heirs and the testator. In some Swiss cantons, direct descendants of the testator are exempt from inheritance tax.

In principle, all members of a community of heirs initially have equal rights to the entire estate, but must inform each other about their relationship to the respective testator and the resulting claims or rights (Article 610 of the Swiss Civil Code). Swiss inheritance law then recognizes three possible types of inheritance distribution: the complete division of the inheritance, which leads to the dissolution of the community of heirs, and the subjective-partial and objective-partial division of the inheritance.

In an objective-partial division of the inheritance, all heirs remain in the community of heirs, even if they have already divided part of the estate among themselves. In a subjective-partial division, one or more heirs receive a settlement, while the remaining heirs retain a share of the total assets until the estate has been fully settled.

Postponement of the Division of the Inheritance

The division of the estate can be postponed for various reasons. In the meantime, the community of heirs remains in place. For example, at the request of an heir, the court can order the postponement of the division if the community of heirs could suffer damage from failure to postpone it (Article 604 paragraph 2 of the Swiss Civil Code).

In addition, the testator himself can order a postponement in his will or inheritance contract (Article 608 paragraph 1 of the Swiss Civil Code). Finally, the postponement of the division can be agreed upon by the entire community of heirs based on a contractual agreement. In this case, a so-called continued community of heirs exists.

How is a community of heirs dissolved?