Under Swiss law, there is little doubt that banking secrecy continues to apply after the client’s death. Its legal basis remains Article 47 of the Swiss Federal Act on Banks and Savings Banks, whose criminal nature requires a restrictive interpretation of any exceptions allowing disclosure.
It is, however, in the context of succession law that this principle reveals its full complexity.
1. Universal succession vs. banking secrecy
Pursuant to Article 560 of the Swiss Civil Code, heirs acquire by operation of law the entirety of the deceased’s estate. In theory, this principle includes all rights to obtain information from third parties, including banks.
Nevertheless, both legal doctrine and the case law of the Swiss Federal Supreme Court have clearly established that such universal succession does not result in an automatic or unlimited lifting of banking secrecy.
In practice:
- heirs’ right to information is functional,
- it is limited to what is necessary for the administration and liquidation of the estate, and
- it does not constitute a general right to investigate the entirety of the deceased’s banking relationship.
2. A key distinction among succession stakeholders
Banking practice requires a strict differentiation between the various parties involved in succession matters:
- Statutory or appointed heirs: entitled to access information, subject to proper legitimation (certificate of inheritance).
- Executor of the will: according to case law, enjoys a broader right of access to information, acting as an official organ of the estate.
- Legatees: generally excluded from direct access to banking information, unless such access is strictly necessary for the execution of their specific legacy.
This hierarchy is essential to avoid unlawful disclosure of information to unauthorised third parties, which would constitute a breach of banking secrecy.
3. Case law and substantive limits to the right of information
The Swiss Federal Supreme Court has repeatedly clarified that:
- banks may refuse to disclose information unrelated to the determination of the estate’s assets,
- certain data—particularly information concerning third parties or transactions without relevance to the succession—remain protected,
- banking secrecy thus continues to serve a filtering function, even after the client’s death.
4. Criminal liability and the conservative stance of banks
Because Article 47 of the Banking Act carries criminal sanctions, any excessive disclosure exposes banks to direct legal risk.
In cases of uncertainty, Swiss banking practice therefore tends to favour:
- a restrictive approach to disclosure,
- high documentary and evidentiary requirements,
- and, frequently, operational inertia where uncertainties persist (unidentified heirs, disputes, international elements).
5. A critical zone: from dormant assets to unclaimed assets
This legally grounded prudence produces a well-known collateral effect:
the emergence of so-called “dormant assets”, which may ultimately become “unclaimed assets”.
Their treatment is governed by the guidelines of the Swiss Bankers Association, which require:
- active searches for beneficiaries,
- extensive documentation duties,
- and, ultimately, publication procedures.
In practice, however, the absence of clear identification of entitled persons often keeps such assets in a prolonged state of uncertainty.
6. A structural tension, not a malfunction
It would be mistaken to view these situations as a failure of banking secrecy.
They are, on the contrary, its logical consequence: a system designed to protect private spheres of life, confronted with the necessity of transmitting wealth in incomplete or degraded factual contexts.
Accordingly, the real issue is not whether banking secrecy survives death.
It is an operational one:
How can a criminal obligation of confidentiality be reconciled with a civil-law requirement of transmission when the beneficiaries are uncertain, absent, or dispersed?
It is precisely in this space that a crucial part of the management of unclaimed assets in Switzerland is being played out today.
