Mentioning Trusts in the Land Registry: The Ticino Notary Between Trusts, Property Rights, and Inheritance

Recording a Trust Relationship in the Land Register: The Ticino Notary at the Crossroads of Trust, Property and Succession Law Niccolò Salvioni, attorney and notary, Locarno. Research paper, v2, October 2023 The paper began as a lecture at the study afternoon of the Lombard and Ticino Notarial Committee (USI, Lugano, 13 October 2023). It was then revised and presented in English at the Euro American Lawyers Group (Istanbul, 27 October 2023). Its starting point is the procedure for recording ("mention") a trust relationship over real property (Art. 12 Hague Trust Convention, Art. 149d PILA, Arts. 58 and 128 LRO). From there it explores ground little covered by Swiss legal literature: how common law trusts interact in practice with Swiss property law and succession law. The starting point is historical and territorial. Ticino was the canton with the heaviest emigration in the nineteenth and early twentieth centuries, largely to California, the United Kingdom and Australia. It is therefore probably the canton with the highest incidence of real property, often rural or in the valleys, caught up in foreign successions and trusts. When one link in the chain breaks, abroad or in Ticino, the transfer of ownership stalls and "silent land" emerges: plots with no known owner. The analysis distinguishes two situations: • Living (inter vivos) trusts: here the notary works mainly within property law, with complexity "to the second power". • Trusts arising on death, whether testamentary or through a pour-over disposition: foreign successions, probate and nonprobate assets also come into play, and complexity rises "to the third power". On the question of instruments, the paper examines the investigative role that Art. 67 LRO assigns to the notary. It also considers the ancillary jurisdiction of the forum rei sitae (Art. 88 PILA, 1850 Switzerland–USA Treaty) and the executor's certificate limited to Switzerland as the key to unlocking transfers to the trustee. Finally, it proposes a narrow reading of the ban on "universal succession" in the 2007 federal Instructions, confining it to inter vivos transfers only. The paper also includes: • a review of the PILA revision on succession; • the separate-will technique for assets located in Switzerland; • an eight-step structure for the notarial deed leading to the recording; • an English–Italian glossary; • A3 flowcharts. Rather than definitive conclusions, the paper offers points for reflection, in the hope that silent land may recover its lost ties and come back to life. Update note (September 2026). The paper reflects the state of parliamentary proceedings as of September 2023. The revision of Chapter 6 PILA was adopted by the Federal Assembly on 22 December 2023, and the Federal Council brought it into force on 1 January 2025. Three outcomes bear directly on the analysis: • Art. 88(1). The Council of States' version prevailed. The subsidiary jurisdiction of the forum rei sitae remains, provided the State of domicile does not deal with the succession. However, Swiss courts no longer make their jurisdiction conditional on inaction by other States. Instead, they may decline it if the deceased's foreign State of nationality or State of last habitual residence deals with the succession. • Art. 91(1). The Council of States' restrictive version was rejected. The compromise proposed by the National Council prevailed: Swiss nationals with multiple nationalities may subject their succession to the law of one of their national States, but may not derogate from Swiss rules on the disposable portion and forced heirship. A choice of law in favour of legal systems that recognise testamentary trusts therefore remains possible. The forced-heirship limit weighs most heavily, however, on dual nationals of common law States such as the United Kingdom and the United States, where reserved shares are low or non-existent. The admissibility of testamentary trusts also remains controversial under Swiss law. • Art. 92(2). This provision entered into force as worded by the Federal Council. An executor's or administrator's rights over the estate, and power to dispose of it, are therefore governed by the law of the State where the succession is opened. This last provision led to a further development. On 26 August 2026 the Federal Council opened a consultation, running until 27 November 2026, on a revision of the LRO concerning proof of legal title in succession and trust matters. The draft marks a paradigm shift in three respects: • Personal representatives. A personal representative appointed abroad would no longer be treated as owner for land register purposes. Instead, they would be noted as a legal representative under Art. 962a(2) SCC, with the community of heirs entered as owner. • Scope of Art. 67 LRO. Art. 67 would be reduced to transfers outside succession: settlement of the trust, change of trustee and transfer to a beneficiary. Successions, partitions and legacies in favour of a trust would instead fall under Arts. 64 and 65. • Foreign estate partitions. It would suffice to file the document required by the applicable succession law, such as a deed of assent. This would replace the notarial transfer deed currently required by Art. 67(1)(a)(2) LRO. If adopted, the revision will require the route described in the paper to be reconsidered. That route runs from the executor's certificate to a notarial deed under Art. 67(1)(a)(2) and (4) LRO.

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