Clearing a flat with no heirs or after inheritance is declined

If a deceased person’s flat is still fully furnished and no one wants or is able to inherit, relatives and the landlord may wonder who is allowed to clear it and who is required to do so. The key question is whether there are no heirs or whether the heirs have declined the inheritance. Each situation involves a different authority.

No heirs or all heirs decline

An estate with no heirs at all is rare. The law recognises statutory heirs as far as the grandparents’ line. If none are alive, the public body inherits under Art. 466 ZGB. More often, the authority does not know whether there are heirs or who they are. It then orders estate administration (Erbschaftsverwaltung) under Art. 554 ZGB and publicly invites any heirs to come forward within one year under Art. 555 ZGB. During this period, the estate administrator manages the estate. No one else clears it.

The second situation is more common: there are heirs who decline the inheritance because the estate has more debts than assets or because they had no contact with the deceased person for years. This situation is governed by Arts. 566 to 573 ZGB. It is the subject of this article.

Declining the inheritance at the district court

Every statutory and appointed heir may decline the inheritance under Art. 566 ZGB. The period is three months under Art. 567 ZGB. For statutory heirs, it starts when they learn of the death. For appointed heirs, it starts with official notification of the will. Anyone who lets the period expire is deemed to have accepted the inheritance under Art. 571 para. 1 ZGB.

The declaration must be made in writing or orally to the competent authority and must be unconditional under Art. 570 ZGB. In the canton of Zurich, the district court at the deceased person’s last place of residence is responsible. The single-judge court records the declarations there. Ask for a certificate. The property management company will want to see it.

If the deceased person was manifestly insolvent or had officially been declared insolvent, the inheritance is presumed to have been declined under Art. 566 para. 2 ZGB. Do not rely on this. An express declaration costs little and clarifies the position for creditors.

What you must not do before declining

Anyone who interferes in estate matters or appropriates estate property loses the right to decline the inheritance under Art. 571 para. 2 ZGB. The law makes no exception for well-intentioned clearing work.

In practice, interference includes:

• taking or selling furniture or jewellery
• instructing a clearance company to empty the flat
• paying non-urgent bills from the estate’s bank account
• continuing the tenancy as though you were the tenant

Actions taken to preserve the estate remain permitted: locking the flat, disposing of perishable food, setting the heating to frost protection and redirecting the post. Terminating the tenancy is also considered an administrative act and does not affect the right to decline. You may arrange and pay for the funeral. Your costs are an estate debt and are usually given priority in the liquidation proceedings.

As long as even one heir is still deciding, nothing may be removed from the flat. This also applies to the cellar.

The bankruptcy office takes over after all heirs decline

If all the closest statutory heirs decline the inheritance, the bankruptcy office liquidates the estate under Art. 573 ZGB. The authority reports this to the bankruptcy court, which orders official bankruptcy liquidation under Art. 193 SchKG. From that point:

• The bankruptcy office draws up an inventory of the flat.
• It realises anything of value and disposes of the rest.
• It negotiates with the landlord over termination and return of the flat.
• The relatives who declined the inheritance neither organise nor pay for anything.

If a surplus remains after all debts have been paid, it passes to the beneficiaries as though they had not declined the inheritance under Art. 573 para. 2 ZGB. This is rare, but it does happen.

In the canton of Zurich, the bankruptcy offices are attached to the notary’s offices. The bankruptcy office at the deceased person’s last place of residence is responsible. Expect it to take several weeks for the office to clear the flat. During this period, rent continues to be charged to the bankruptcy estate.

Ask the bankruptcy office about personal belongings

Photo albums or letters are of no use to the bankruptcy office. On request, the offices will usually release such keepsakes with no market value to relatives. Ask before the office clears the flat.

Do not take anything on your own initiative, even if it appears worthless to you. The distinction between a keepsake and appropriation is unclear. If there is any doubt, the office decides.

If the estate has no assets

If the estate does not even cover the procedural costs, the bankruptcy court discontinues the liquidation for lack of assets under Art. 230 SchKG. The flat remains uncleared. In this situation, the heirs who declined the inheritance may take over the assets if they pay the bankruptcy costs under Art. 230a SchKG. Anyone who does not wish to do so need not take any action.

In practice, the landlord is then often left to arrange the clearance. Before doing so, the landlord should obtain written confirmation from the bankruptcy office that it will not realise the assets. Without this release, the landlord risks claims if an heir later comes forward.

The landlord’s position

For the landlord, the death is not initially grounds for termination. The tenancy passes to the heirs. The landlord may terminate it only subject to the ordinary notice periods. Once all the heirs have declined the inheritance, the bankruptcy estate becomes the other party. If a tenant is bankrupt, the landlord may request security for future rent and terminate without notice if it is not provided under Art. 266h of the Swiss Code of Obligations (OR). Ask the responsible bankruptcy office directly whether it follows the same procedure in an estate liquidation.

The rental deposit belongs to the bankruptcy estate. The landlord submits its claims to the bankruptcy office. Outstanding rent and documented damage are offset against the deposit to the extent that it is sufficient.

The landlord may not clear the flat without authority before an official body has released it. There is no landlord’s right of retention over furniture in residential premises.

What a clearance company may do in this situation

A clearance company may clear the flat if instructed by a person with authority to dispose of the estate. Once all the heirs have declined the inheritance, only the bankruptcy office has this authority. Before then, all heirs must act jointly. Instructions from relatives who intend to decline or have not yet decided are not sufficient.

Räumen & Werten undertakes clearances after an inheritance has been declined only with written instructions or written release from the bankruptcy office. Before every estate clearance, we ask whether the period has expired for all heirs. While the period is running, we can inspect the flat, record the scope of the work and quote a fixed price. You can then book the date once the decision has been made. → How an estate clearance works

Timeline

• Day 0: Death. The period for declining starts when the heir learns of it.
• Within 1 month: request a public inventory (öffentliches Inventar) if the estate’s position is unclear. → Public inventory in the canton of Zurich
• Within 3 months: declare that you are declining the inheritance at the district court and ask for a certificate.
• Afterwards: notification to the bankruptcy court, order for liquidation and inventory by the bankruptcy office.
• Weeks to months later: realisation and clearance by the bankruptcy office, followed by return of the flat to the landlord.

This article describes the law in general and is not a substitute for legal advice on an individual case.