Anticipated declaration of distance in the inheritance division process

If several persons inherit in one succession, they receive joint ownership of the estate upon the death of the testator. Together, the heirs form the community of heirs. The heirs in the community must unanimously dispose of the estate until the time of the division of the estate. The division of the estate means the dissolution of the community of heirs. There are various ways to divide the estate. The timing of the division of the estate is not predetermined. Therefore, the community of heirs can exist for several years. The estate can be divided judicially or extrajudicially. If one or more heirs decide to divide the inheritance in court, the entire community of heirs is involved in the inheritance division process. All heirs must be involved in the proceedings. However, the motives and interests of the participants in this process may diverge. Doctrine and jurisprudence provide the possibility of an ‘anticipated declaration of procedural distance’ for those heirs who do not wish to participate in the process. If you are involved in an inheritance distribution process and require assistance or have other concerns regarding inheritance law, the attorneys of Teichmann International in St. Gallen, Zurich and Frauenfeld will be happy to assist.

Typically, the non-litigant party declares a procedural distance. With the declaration of distance, the declaring heir remains entitled to be a passive party. This means that this person is still a party to the proceedings but waives various party rights. For example, the declaring person waives the right to file their own applications, the right to contest and the right to assert. The right to contest is the right to dispute factual assertions made by the plaintiff or the defendant. The right of assertion allows the parties to bring forth their own assertions and requests for evidence. In addition, with the declaration of distance, the co-heir waives the right to exercise the legal remedies to which they are entitled.

The anticipated declaration of procedural distance can be declared as of the initiation of the inheritance division process. However, the scope of this action must be clear, otherwise the declaration is not validly made. The declaration may be made throughout the inheritance proceedings until the opening of the decision. If the proceedings extend over several instances, a declaration of procedural distance is sufficient for all subsequent procedural steps. The declaration must be formulated in such a way that it is clear and unambiguous. The declaration cannot be revoked or reissued at will. Legal certainty for the litigating co-heirs is to be preserved in this way. Thus, once one has made the declaration that one wishes to refrain from litigation, one cannot arbitrarily become an active party again by revoking it. However, the possibility should still be given. Especially for proceedings which could not be foreseen. In this case, the party is allowed to return to the declaration it has made.

When allocating the costs of the proceedings, the court must consider the co-heirs individually and allocate the costs in accordance with their participation in the proceedings. It may therefore be the case that if a co-heir has declared his distance at an early stage, he will not have to bear any procedural costs. However, a co-heir who declares their distance only towards the end of the proceedings has to contribute to the costs. If you need further information on the subject of an anticipated declaration of procedural distance or if you have any questions pertaining to your role in an inheritance proceeding, our attorneys in St. Gallen, Zurich and Frauenfeld will be happy to help you.