Inheritance, probate and succession planning

Generational shifts differ from regular inheritance settlements in that the generational shift is planned and carried out while the testator is still alive. This allows the shift to be tailored to a greater extent than an inheritance settlement, which is only executed after the testator's passing.

1. Obtain an overview of the deceased's assets and debts before deciding on the form of settlement. You can request a power of attorney for the estate from the district court to be authorized to gather this information. You may also ask the district court to issue a preclusive proclamation, which sets a deadline for creditors to submit their claims. As a general rule, claims not submitted within the deadline will lapse.
2. Identify the deceased's heirs according to the law and/or the will.
3. Notify the district court whether you prefer a private or public settlement of the estate. Deferred settlement may be relevant for a surviving spouse or cohabiting partners with joint children.
4. Keep track of the deadlines, such as the deadline for opting for a private settlement and the deadline for asserting and/or contesting a claim under the will.

Cohabiting partners without joint children do not have inheritance or deferred settlement rights under the law. If they wish to provide for each other through inheritance, they must create a will.Cohabiting partners with joint children do have inheritance and deferred settlement rights under the law, but these rights are more limited than those of spouses. Cohabiting partners should create a will if they want an arrangement different from what the law provides.

In a private probate, the heirs receive a probate certificate and handle the estate administration themselves or through an agent/lawyer. The heirs are responsible for covering the deceased's obligations, including debts. If the debts exceed the assets in the estate, the heirs may, in principle, "inherit debt."

In a public probate, the district court appoints an administrator to handle the estate administration. The heirs cannot "inherit debt" unless they took over the estate for private probate before public probate was initiated.

In both public and private probates, the deceased's debts must be settled before any net assets are distributed among the heirs.

When a spouse passes away, the surviving spouse must either take over the estate undivided or carry out a combined probate. In a combined probate, the inheritance settlement occurs in two stages:

1. A marital settlement between the surviving spouse and the deceased spouse.
2. An estate settlement where the deceased's assets are distributed among the heirs. Remember that the surviving spouse is usually also an heir.

The estate of the deceased is considered a separate tax entity, meaning the deceased's taxes must be paid in the usual manner.

Currently, there is no inheritance tax for those who inherit. However, if the heirs reside abroad, specific inheritance tax rules in their country of residence may apply.

As a general rule, only wills that meet the formal requirements should be used as the basis for the inheritance settlement. Therefore, one should first assess whether the will complies with these requirements, see the Inheritance Act §§ 42 and 44.

If there are multiple wills, one should start with the most recent will and evaluate whether earlier wills have been fully or partially revoked. If earlier wills are not explicitly revoked, the wills must be interpreted to determine the testator's intent. The Inheritance Act contains supplementary interpretation rules that apply unless there is reason to believe the testator intended otherwise, see § 58 of the Inheritance Act. For example, newer dispositions take precedence over older ones if the estate is insufficient.

It is entirely possible to carry out the inheritance settlement without assistance from a lawyer.

However, since there are numerous aspects to manage during an inheritance settlement, it is recommended to engage a lawyer to ensure the process is conducted correctly.

A lawyer can also help draft clear and well-structured agreements to prevent conflicts among the heirs afterward.

Yes. Only a will can determine the distribution of the inheritance. A lasting power of attorney ceases upon death.

It is up to the giver to decide whether an advance on inheritance reduces or offsets your share of the inheritance, but this must be determined no later than at the time of the advance. We recommend creating a gift letter or other written documentation when distributing an advance on inheritance to prevent conflicts among the heirs afterward.