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The establishment of a pre- and post-inheritance

Ausschnitt aus: Génot, François (2014): “Commonplace 7”, www.francoisgenot.com

Mrs. Bodo wants to bequeath the family fortune to her children. However, the family fortune should remain in the family even if one of her children should have no descendants. With the instrument of pre- and post-inheritance this can be achieved in a binding and tax-compatible way.

The same procedure would have to be followed if Mrs. Bodo or one of her children should not have any children. Then she ensures with the appointment of her husband as heir in advance and obligatory appointment of her children/brothers and sisters as heirs in succession that the family property originating from her family remains in the family after the death of the husband. If the husband were to bequeath the family property to the siblings of the pre-deceased wife by means of his own will, this would result in a considerable tax burden. Pre- and posthumous inheritance thus avoids that the randomness of the sequence of death determines the whereabouts of the family assets.

The two case studies will illustrate these two scenarios.

Case study 1: Mrs. Bodo’s daughter has no descendants

Mrs. Bodo has a daughter and a son. The daughter is childless and therefore Mrs. Bodo has two concerns: firstly, her fortune should be divided equally between her daughter and her son at her death. If the daughter still has no descendants at death, her share of the family fortune shall go to the son or his descendants. The same shall also apply to the son. Without the instrument of pre and post inheritance, the will of Mrs. Bodo cannot be enforced in a legally binding manner. In addition, excessive inheritance taxes would be incurred if the daughter were to bequeath her inherited property to her brother out of her own right of inheritance. This is not the case if these assets are transferred from Mrs. Bodo to her daughter as the preliminary heir and then to her brother as the subsequent heir.

As far as compulsory portions exist, specific formal requirements have to be considered and the involved heirs have to be included in the inheritance contract. In such cases it is not possible to unilaterally order dispositions regarding pre- and post-heirship.

Case study 2: Mrs. Bodo is married and has no descendants

Mrs. Bodo is married. She and her husband have no descendants. The property originating from Mrs. Bodo’s family shall also be passed on to Mrs. Bodo’s siblings (and thus remain in the family), even if Mrs. Bodo should die before her husband. However, the marital property is to go first to her surviving husband in the event of Mrs. Bodo’s death. Only at his death the property shall go to the siblings of Mrs. Bodo. Both for the legally binding safeguarding of this wish of the spouses Bodo as well as for reasons of inheritance taxes, this must be regulated by means of pre- and post-inheritance, because the family of the pre-deceased wife is not related to the husband. In many constellations, a contractual agreement is required for this. At the same time, it must be ensured that this goal is not thwarted by contractual agreements. An overall consultation takes into account the marriage and inheritance contract aspects.

Each case requires an individual solution

Address the problem and talk to us. As is well known, a will is not enough. Only a contract of inheritance with specific clauses can regulate a pre- and post-inheritance. The testator thus prevents the violating of compulsory portions, even if this is not the case from an economic point of view. A violation of the compulsory portion would not be desirable anyway, as the surviving partner should be able to continue living in the same economic circumstances. An analysis of the initial situation (and possibly also its documentation) is important to achieve the goal. In many cases, it would help the parties involved to use a qualified execution of will in their wills.

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Martin BoosAttorney at Law, Partner

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+41 61 202 91 91

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Roman Kälin-BurgyAttorney at Law, Partner

roman.kaelin-burgy@amatin.ch
+41 61 202 91 91

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