KMU Magazin No. 10, October 2024 Death of a Relative - Legal Q&A

In the event of the death of a close relative, mourners are faced not only with the emotional loss but also with a wide range of legal issues. This article provides an overview of the most important actions to be taken by heirs and/or close relatives.

Although there is often neither time nor energy available in the event of the death of a close relative, relatives must take important steps so that their actions are legally binding and that rights are not forfeited. The obligations of close relatives are varied and individual. The most important ones are outlined below.

The most important actions

Death certificate and registration with the registry office

A so-called death certificate is often required as proof of death. The death certificate is issued either by the family doctor or, if the person dies in an institution such as a hospital or nursing home, by that institution.

In principle, deaths must be reported to the registry office at the place of death and at the deceased's place of residence within two days. The death certificate and any other documents (family record book, identity card, etc.) must be submitted to the registry office. If the person dies in an institution (hospital, nursing or care home), the institution reports the death directly to the registry office.

Obligation to submit last wills and testaments

If the deceased person made a will or a contract of inheritance, the document must be submitted to the relevant authority immediately after the death, even if the document is considered invalid. Failure to submit a will may, under certain circumstances, lead to disinheritance, compensation and even criminal prosecution. The wishes of the deceased as expressed in the last will and testament must be observed. These wills often contain instructions regarding the funeral.

Assets and debts of the testator

At the time of a person's death, all of their rights and obligations pass to their heirs (so-called universal succession). Normally, these are the spouse and descendants. All heirs together form the community of heirs. This remains in place until the estate has been divided and until then the heirs can only dispose of the estate jointly. After the wills and inheritance contracts have been served, the competent authority draws up an inventory of the estate, which forms the basis for the distribution of the estate's assets and liabilities.

The so-called renunciation of inheritance is important in this context. According to this, an heir can renounce the inheritance – in particular in the case of an over-indebted inheritance – in order to avoid having to pay for the debts of the testator. The renouncing person is treated by law as if he had not received the inheritance.

The deadline for renouncing the inheritance is generally three months and begins at the point in time at which the death of the testator becomes known. However, an heir who has already “interfered” with the inheritance, for example by appropriating or concealing inheritance assets, can no longer renounce the inheritance. Universal succession also involves the transfer of all contracts that the testator has entered into on a permanent basis. In particular, the following contracts and their possible dissolution must be considered.

Rental agreement

If the testator lived in rented accommodation, the tenancy agreement passes to the heirs at the time of death. The law offers the heirs the option of terminating the tenancy agreement extraordinarily, subject to the statutory notice period on the next statutory date. The statutory notice period is three months for residential premises and six months for business premises. Notice of termination must be given for a date that is customary in the locality or, if there is no customary date, for the end of a three-month rental period.

Notice of termination must be given for the next statutory date. If this deadline is missed, the contractually agreed notice periods continue to apply. However, if a person dies shortly before the statutory deadline expires, it is likely that the heirs would be given a reasonable period of time to consider their options.

The formal requirements for termination must be strictly adhered to. This means that all (!) heirs must sign the notice.

The apartment must then be vacated and cleaned in accordance with the law. The assets of the deceased person must not simply be disposed of. Rather, they belong to the estate. The community of heirs must decide how to proceed.

Other contracts

Not only the lease but also other contracts do not automatically end with the death of the testator. In particular, bank relationships (loan or current account contracts or similar), insurance (health insurance, home contents and liability insurance and so on) or other service contracts such as newspaper subscriptions and subscriptions for public transport continue.

The termination provisions set out in the contracts or general terms and conditions apply. It should be noted that certain contracts have special provisions in the event of death. For example, some telephone providers accept cancellations of contracts immediately and without notice periods.

Social security

The death of a person naturally also has an impact on social security (AHV/IV, EL, UV, pension fund). First of all, it is important that the compensation office and/or pension fund is informed of the death of a person, quoting the social security number (e.g. 756.2156.8282.80). If the deceased person was receiving social security benefits before their death, these will be discontinued at the end of the month in which the person died.

However, the death may also trigger further benefits. Known benefits in this context include widow's, widower's or orphan's pensions under the old-age and survivors' insurance (AHV) and occupational benefits. If a person dies as a result of an accident, accident insurance benefits may even be granted.

Pension funds may also provide for additional benefits in the event of death. These are regulated individually by the pension funds. It is true that pension funds are not obliged to pay out the capital benefits accumulated by the deceased to the surviving dependents. However, in many cases, the pension funds do provide a so-called “death benefit” and specify any beneficiaries.

Voluntary insurance

Finally, banks and insurance companies offer solutions for the so-called “third pillar”, voluntary insurance. Normally, the pension relationship is dissolved and the pension assets are made available to the beneficiaries. The order of beneficiaries is determined by law. The following persons are to be favored in this order:

• the spouse / registered partner
• direct descendants or persons who were largely supported by the deceased, or the life partner, provided that the deceased had been in an uninterrupted life partnership with him/her for the last five years prior to his/her death or was responsible for the maintenance of one or more joint children
• the parents
• the siblings
• the remaining heirs

The order of beneficiaries can be changed to a limited extent. For example, the testator can select only one of the persons mentioned in point 2 or change the order of the persons in points 3 to 5.

Summary

The above list is not intended to be exhaustive. There are likely to be numerous other points that need to be considered by relatives in individual cases. In addition to the burden caused by bereavement, the lives of close relatives can be made much easier if the testator clearly and unambiguously expresses his or her wishes in a will during his or her lifetime. This is to avoid additional questions arising during the processing of the above points that would have to be clarified at the expense of the relatives.

Furthermore, the testator can use a last will and testament to appoint an executor who has to implement the last will of the deceased person and take the lead in the legal processing of the death. We strongly advise you to consult an expert in this regard.