Mastering Claims Against Estates: A Guide to Debt Enforcement in Switzerland
Navigating the complexities of debt enforcement against estates in Switzerland requires a thorough understanding of the legal framework, particularly when dealing with undistributed inheritances. This article provides insights into the enforcement of claims against estates, drawing on recent case law from the Swiss Federal Supreme Court (SFSC).
Understanding Undistributed Inheritances
As long as an inheritance remains undivided, creditors can choose whether they enforce or continue enforcing claims assumed by the deceased against the estate or one or more heirs individually. They can do so by initiating debt collection proceedings or court proceedings.
Debt Enforcement Proceedings
Despite lacking legal personality, an undistributed inheritance has standing in enforcement proceedings, providing creditors with a pathway to access estate assets. Debt enforcement proceedings can either be initiated before or after the death of the individual.
Initiation before Death
Before death, debt enforcement proceedings may be instituted against the individual and, after death, continued against the undistributed inheritance or one or more heirs individually. However, it should be noted that debt enforcement proceedings may only be continued against heirs individually after death if the realisation of collateral is concerned or if the deadline for participation in the seizure of assets under art. 110 and 111 DEBA has lapsed.
The continuation of proceedings against the undistributed inheritance requires the creditor to clearly state in the enforcement request against whom the enforcement action is directed. Generally speaking, terms such as “undistributed inheritance of the deceased X.Y.” and “community of heirs of the deceased X.Y.” meet the requirements to pursue the undistributed inheritance directly, as confirmed by recent SFSC case law (judgment 5A_446/2024, dated 21 November 2024).
Initiation after Death
After death, debt enforcement proceedings may be instituted against the undistributed estate, providing direct access to the assets but without (subsidiary) personal liability to the heirs. Alternatively, debt enforcement may be targeted against one or more heirs individually. In such cases, the creditor gains access to the liquidation proceeds of the respective heir(s)' share, and the heirs are personally liable.
Executors have standing in debt enforcement proceedings against the estate, acting independently and exclusively on behalf of the estate. The consent of the heirs is not required.
Court Proceedings
Court proceedings offer an alternative avenue for enforcement. As with debt enforcement proceedings, court proceedings can be initiated either before or after the death of the individual and be directed against the undistributed estate or one or more heirs individually.
Initiation before Death
In case court proceedings are initiated against the individual before death, the universal succession of the heirs will lead to a party change after death and may result in a suspension of the proceedings until the end of the disclaimer period.
Initiation after Death
If court proceedings are initiated only after the death of the individual, the creditor has the choice of suing the estate or one or more heirs individually.
Suing the estate constitutes a mandatory joinder of parties, meaning all heirs must be parties to the proceedings. In contrast, court proceedings against one or more heirs constitute a voluntary joinder of parties, involving only the heirs concerned.
If executors are involved, they act independently in their own name but on behalf of the estate, with legal costs borne by the estate.
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