Why the bank does not authorise you to have immediate access to the funds inherited?
If a Swiss bank account holder has passed away the Swiss bank will immediately freeze the account until all heirs are known and identified by the bank. All heirs together are considered as legal successors of the account holder. It is not the bank’s duty to split the assets in the bank account according to the applicable inheritance law. The bank will defreeze the account after being sure to have knowledge of all the heirs. The access to the funds is subject to a payment instruction signed by all existing heirs collectively. That means that all heirs must be in agreement. If one heir does not cooperate, the funds remain blocked until all the heirs will find an agreement to sign a joint payment or joint transfer instruction duly signed by all heirs, including instituted heirs and legal heirs. The bank wants to avoid the risk to be obliged to pay twice. This is the reason why the bank will immediately block the bank account as soon the bank has knowledge on the decease of the account holder.
What is a post-mortem power of attorney?
If the account holder has a so-called joint-account with a friend or his wife or if he has issued a special power of attorney in favour of a third person, in most cases there is a special standard wording in the agreement in place with the bank authorising the joint-account holder or the beneficiary of the special power of attorney to act after the decease of the account holder. This standard wording covers the bank from the risk of double payment to a beneficiary who is not a legal heir or instituted heir or successor of the estate, respectively of the account. There are many succession litigations involving the surviving joint account holder or the beneficiary of the special power of attorney which remains in force after the decease (post mortem power of attorney) and the legal or instituted heirs. Despite the power of attorney being still in force after death the bank will always block the account as soon as the bank knows that the account holder has passed away. The legal heirs are authorised to revoke the power of attorney granted by the deceased bank account holder because the legal heirs are getting the same status as the account holder by virtue of their status as heirs and legal successors of the estate of the late account holder. In most cases the power of attorney previously established by the deceased account holder will be revoked immediately by the heirs.
What is a dormant account?
If the bank has no information about the decease of the account holder, it will treat this account as a so-called dormant account. Dormant accounts are subject to a specific legislation which came into force as a consequence of the scandal with the holocaust funds. Dormant accounts are accounts with no communication between account holder and bank.
In most cases the bank requires specific documents from the heirs and they must prove their status as legal successors of the account.
What documents must be produced to be recognised as legal successor of the bank account?
Which documents are imperative for you:
- Certificate of Death, legalised by a notary public and superlegalised with Apostille
- Certificate of Inheritance, indicating the names of all legal heirs
- Last Will, if any
- Passport of the heirs
- Collective transfer instruction signed collectively by all legal heirs or instituted heirs
It is appropriate to produce at least the abov e documents, legalised by a notary public and superlegalised with Apostille (for the signatory nations of the Hague Convention signed in 1961) or, superlegalised with the Swiss Embassy in the country of origin.
If the heirs have no documentary evidence on the existence of a Swiss bank account, but assume that a Swiss account may exist and don't know the name of the bank, they should contact our law firm. There are more than 400 banks in Switzerland. Not all banks are asking for the same documentation. Due to our long experience with bank account succession cases we will negotiate with the head of the legal department of the bank which specific documents must be collected.
Can you be successor of the account without being heir?
Yes. If the account holder is a family foundation, you do not have to be an heir to qualify as successor. If you are beneficiary of a family foundation or a trust you are entitled to receive the funds in your capacity as beneficiary by virtue of the regulations of a family foundation or by virtue of the letter of wishes of a trust. In countries with forced heirship rules (ius cogens: imperative law) you can not dispose as you desire. Clients with such a problem are setting up a trust domiciled in anglo-saxon jurisdictions without forced heirship rules. Many homosexual clients are setting up a trust in such a jurisdiction. An appropriate trust can make sure that hostile family members are not coming in the benefit of the estate.
How you make sure that your wealth will be distributed according to your last will?
There are very efficient legal succession instruments we can suggest you to set up in order to ensure that the funds are always under your control such as trusts, family foundations, waqfs and others.
Due to the multiple legislations having an impact on international families of HNWI it is always in your interest and in the interest of the heirs to select the most appropriate instrument fitting your needs and expectations. We will deliver tailor-made solutions to you. Do not hesitate to call us or send us an email for any question you may have.
You will be supported by a senior lawyer having gained professional experience in the legal department of a bank. He will guide you through the negotiations with the bank and he will ensure to have the right things done in the right place at the right time.
Call us or to send us an email:
+41 79 543 85 93 enzo.caputo@swiss-banking-law.com
Комментариев нет:
Отправить комментарий