When an estate opens, one of the first tasks for the heir is to reconstruct the deceased’s assets in order to determine their composition and extent. Once the patrimonial situation is clarified, the heir can assess whether to assert their rights, and, if so, against whom.
In this respect, financial institutions are an invaluable source of information for heirs, since they hold years of records of the deceased’s banking relationship. However, these records remain protected by various confidentiality obligations – such as banking secrecy and the deceased’s interest in the protection of their private sphere – creating tension between the heirs’ right to information and the bank’s duty of secrecy.
In this context, what steps may a duly legitimate heir take to obtain information when the deceased was an account holder or beneficial owner?
An heir’s right of access to banking information rests on two foundations: 1. contractual – derived from the relationship between the deceased and the bank, and 2. successional – linked to the heir’s status and the resulting actions for reduction, recovery or partition.
Under the law of obligations, the bank must report on its management to the client, i.e. the account holder (Art. 400 para. 1 CO). This duty continues after the account holder’s death for the benefit of the heir who succeeds the deceased as account holder. Accordingly, the heir may obtain all information relating to the deceased’s assets as of the date of death (SJ 2025 No. 10, p. 870).
Regarding earlier transactions, the heir’s interest generally conflicts with the deceased’s interest in protecting their privacy, which includes both personal facts and economic aspects – such as transfers made during the lifetime of the account, regardless of whether confidentiality was requested (TF 4A 522/2018, recital 4.5.2).
However, where the bank’s diligence or the compliance of transactions carried out on the deceased’s instructions is called into question, the heir may request information needed to verify proper execution of the mandate and, if necessary, bring liability claims against the institution (TF 4A 522/2018, recital 4.2.2.1; ACJC/78/2023, recital 4.1.3). In this case, the claim is contractual in nature, as it arises from the relationship between the deceased and the bank (ATF 138 III 728, recital 3.5; TF 5A 947/2013, recital 3.3.4.1).
The heir may also invoke a successional right to information if they can demonstrate a concrete legal interest, i.e. the possibility of initiating an action in reduction, recovery or partition (ATF 132 III 677, recital 4.2.4; TF 4A 522/2018, recital 4.3). Only reserved heirs whose reserved portion is potentially prejudiced, or heirs having a right to a share, may request information regarding transactions preceding death (TF 5A 620/2007, recital 7.1). The requested information must be useful for the protection of their inheritance rights and be limited to what is necessary in this regard.
At international level, the distinction between contractual and successional foundations determines the applicable regime.
• A claim based on the contractual relationship between a deceased person domiciled abroad and a Swiss bank often falls under the Lugano Convention (Art. 1 para. 1 LC). In practice, banks’ general terms and conditions usually subject the contractual relationship to Swiss law, so that the claim remains governed by Article 400 para. 1 CO.
• On the other hand, a claim based on inheritance law falls under the Swiss Private International Law Act (PILA), provided that no international treaty takes precedence over this Act. Jurisdiction lies with the courts of the deceased’s last domicile (Art. 86 LDIP), and the scope of the duty to provide information is determined by the law governing the succession (TF 4A 522/2018, recital 4.4.2).
The situation differs when the deceased was not the account holder but only the beneficial owner of a bank account. In this case, banking secrecy is fully enforceable. As the beneficial owner is not a party to the contractual relationship between the account holder and the bank, they have no right to information concerning the account (TF 4C.108/2022, recital 3.c.aa).
In the absence of a contractual link, his heir cannot succeed him in this relationship. As the bank has no duty to provide information, the heir of a beneficial owner will be refused access to banking data (KESSLER / CHAPUS-RAPIN / EIGENMANN, Beneficial owner and succession, Succession Law Day 2023, p.
29). In such a case, only successional grounds may be invoked. The heir must show a credible legal interest in the recovery of assets potentially belonging to the estate, such as through an action in reduction and recovery, or an action for distribution and partition. This right to information is limited to what is necessary for the protection of inheritance rights, as the deceased’s interest in confidentiality must prevail when the heir has none of these rights (KESSLER / CHAPUS-RAPIN / EIGENMANN, op. cit., p. 35).
At international level, the same logic applies: the right to information based on succession is governed by the PILA, with jurisdiction at the deceased’s last domicile (Art. 86 PILA) and the scope of the duty to provide information being determined by the applicable succession law.
Serge Fasel
Partner, Geneva
&
Théo Goetschin
Counsel, Geneva
The authors would like to thank Noémie Pauli for her assistance in preparing this article.
