Inheritance in Poland
- Inheritance in Poland
- Statutory succession
- Inheritance tax
- Property inheritance
Law of Succession in Poland
Whether or not we leave any property behind, there is no escaping the issue of inheritance. During our lifetime, basically each and every one of us has encountered or will encounter the law of succession because sooner or later we will be called to succession, thus assuming a vast array of formal obligations that must be met within the prescribed deadlines. The fate of the entire estate, our responsibility for estate debts and the scope of the inheritance itself depends on our compliance with those deadlines.
Inheritance checklist in Poland – what are the key stages ?
- Check if there is a testament of the deceased that names you as a testamentary successor,
- In absence of testament – verify whether you are statutory successor as per Polish statutory inheritance rules,
- Make a statement on acceptance or rejection of inheritance and consider drawing up inventory for liability limitation
- Apply to the court or a notary public for inheritance confirmation (inheritance certificate / ascertainment of inheritance acquisition)
- Apply for exemption or pay the inheritance tax,
- Register your rights in relevant registers (KW – property register, KRS – company register, etc.)
- Apply to the banks for funds transfer.
Succession rules in Poland
First two points above inheritance checklist – refer to two alternative rules of succession that may apply to your inheritance. According to the Polish law, an estate may be inherited (acquired) either through testate or intestate succession:
- Intestate succession (referred also as statutory inheritance) applies when a person dies without leaving a will (testament). The question of who and in which order inherits the deceased person’s estate is regulated by statute. It is when the term “groups of heirs” is used. The order in which the heirs are called to succession depends on their relation with the deceased.
- Testate succession (referred also as testament succession) is an entirely separate issue. It usually takes place based on a will or, in the simplest of terms, the testator’s last will. The purpose of this instrument is either to grant an entitlement to certain intestate heirs or allow persons outside the circle of intestate heirs to inherit.
Acceptance or rejection of an inheritance
Point three of the above inheritance checklist refers to an obligation of acceptance or rejection of the inheritance. An inheritance may be accepted by way of simple acceptance (with unlimited liability for estate debts) or under the benefit of inventory (with liability limited to the value of the estate assets). It may also be rejected.
In the absence of the above declaration within the deadline of 6 months, a legal presumptions applies that successor accepted an inheritance. As of 18.10.2015, an heir who has not made a declaration as to the inheritance within the statutory deadline shall be treated as an heir accepting the inheritance with the benefit of inventory. This effect takes place with respect to each heir.
|Simple acceptance of inheritance||heir is liable for all debts left behind by the deceased, whatever their value or the value of the estate|
|Acceptance of an inheritance with the benefit of inventory||heir’s liability for the deceased person’s debts is limited to the value of the assets received; the estate’s value is determined based on an official estate inventory or an estate inventory compiled individually|
|Rejection of inheritance||heir is treated as if they predeceased the opening of the inheritance and, therefore, loses their rights and obligations under the estate|
|Absence of declaration within 6 months||heir is deemed as accepted with the benefit of inventory.|
What is interesting, Polish succession law does not provide for the implied acceptance of an inheritance. An heir who has taken possession of the estate and started to administer it can later reject it. Taking certain actions with respect to the estate does not mean that the inheritance has been accepted. If such an heir has subsequently disclaimed the inheritance, the provisions on negotiorum gestio (agency without authority) shall apply mutatis mutandis to the relations between this heir and the heirs who as a result acquired the inheritance.
Form and content of a declaration of acceptance or rejection of an inheritance
A declaration of acceptance or disclaimer of an inheritance may be made orally or in writing (with an officially authenticated signature) with a civil-law notary or before a court during the proceedings to ascertain the acquisition of an inheritance or to take an oral declaration of acceptance or disclaimer of the inheritance. This declaration may also be filed through an attorney. A declaration of acceptance or disclaimer of an inheritance should contain information provided for by the Polish Code of Civil Procedure.
Acceptance or rejection of an inheritance by a minor
A person with full capacity for acts in law may file a declaration of acceptance or disclaimer of an inheritance acting alone. Persons who do not have full capacity in this respect (e.g., children under 18) are represented by their legal representatives. Permit / consent of a family court is required for unconditional acceptance or rejection of an inheritance on behalf of a person without full capacity for acts in law. Without it, a declaration made by a legal representative is invalid.
Acceptance or disclaimer of an inheritance through an attorney
An heir, as far as they have full capacity for acts in law, may file a declaration of acceptance or disclaimer of an inheritance either personally or through an attorney. A power of attorney to file such a declaration should be made in writing with authenticated signature. It should clearly indicate the authority to file a declaration of accepting an inheritance in a specific manner or disclaiming thereof.
6 months time limit for acceptance / rejection of inheritance
A declaration of acceptance or disclaimer of an inheritance may be filed within six months from the day an heir learned about their title to inherit, i.e., as a rule from the day they learned that the relative they inherit from has died. Thus, the 6-month period runs for each heir individually, i.e., from the moment of learning about the death of the deceased, and in the case of further relatives from the moment of learning about the disclaimer of the inheritance by those previously entitled to it.
Temporary inheritance – prior to acceptance / rejection of inheritance
Prior to expiry of the 6 months period for making a declaration of acceptance or disclaimer of an inheritance, the acquisition of the estate is temporary. During that period, an heir’s liability for the estate debts is limited to the value of the estate, while their personal property remains separated from the inheritance. An heir may not dispose of the inheritance or a share thereof during that time. Nor may they dispose of an asset of the estate or an interest in such an asset.
Effects of filing a declaration of acceptance of an inheritance
After filing a declaration of acceptance of an inheritance, the acquisition of rights and obligations by an heir becomes definitive. An heir who has made a declaration of acceptance of an inheritance can no longer disclaim it, and their personal property is merged with the estate.
Inheritance confirmation options
Point four of the inheritance checklist refers to a formal procedure which aim is to establish and confirm who is the successor and who has acquired the right to the inheritance of a deceased person. Polish succession law provides two alternative options: Court and Notarial. Its advantages and disadvantages Amy be learned from below table.
|Method of inheritance confirmation||Advantages||Disadvantages|
|Court inheritance confirmation||
|Notarial inheritance confirmation||
Court inheritance confirmation in Poland
In the court option it is the court who determines a circle of persons entitled to inherit the deceased person’s estate by way of inheritance.
What is interesting, neither the Polish Civil Code nor any other legal acts require such a procedure, but it certainly is in the heir’s interest as the court ascertainment of the acquisition of an inheritance is a document that will have to be presented to third parties in order to confirm the heir’s right to administer the deceased person’s estate. It will allow the heir to recover the amounts due to them, make changes in land and mortgage registers (i.e. property register) or the National Court Register (i.e. company register) and register a car to someone else.
The application for inheritance ascertainment
According to the Polish succession law, the court issues a document certifying inheritance acquisition on an application by any person appearing to the court to have a legal interest. This means that the court does not initiate these proceedings automatically, but waits until someone interested brings the case to court. Since these are non-contentious proceedings, the letter initiating it is referred to as an application and not a lawsuit.
The circle of interested persons who can file an application to the court includes, first of all, heirs, deceased person’s creditors, forced heirs, and legatees. It may also include persons who do not claim their right to an inheritance, but are interested in establishing that they are not heirs and, therefore, not liable for estate debts. An application for court ascertainment of the acquisition of an inheritance may also be submitted by an executor of a will.
Such an application must list all potential heirs as participants. In addition, it is necessary to present all the circumstances of the case and indicate whether the inheritance is acquired under the laws of intestacy or a will.
The proceedings of an inheritance ascertainment
In the course of the proceedings to ascertain the acquisition of an inheritance, the court shall examine ex officio who the heir is, and, specifically, whether the testator has left a will. It shall also request a person who was found in possession of a will to submit it to the court. If there is a dispute concerning the will’s validity, the court settles the dispute during the course of the proceedings. It is important to note that during the proceedings, the court does not examine the assets of the estate. It is only in the case of intestacy that the court is obligated to examine whether an inheritance includes an agricultural holding or a land contribution to a farming cooperative and which heirs meet the conditions provided for inheriting such a holding.
Decision on the acquisition of an inheritance
A decision on the acquisition of an inheritance is usually issued following a hearing. All heirs are summoned to attend the hearing, and they make a statement to the court as to whether they know any other heirs, and whether the deceased has left any wills. In its decision on the acquisition of an inheritance the court neither divides the estate nor grants the heirs exclusive ownership of specific assets. It only determines who, on what basis and in what amount, acquires the rights to the inheritance as a whole. It should be noted that the ascertainment of the acquisition of an inheritance should define the legal situation of a given estate as a whole. Hence, the ascertainment of the acquisition of an inheritance with regard to a part of the estate or to some of the heirs is not permitted.
A court competent to issue a certificate confirming the acquisition of an inheritance is the court with jurisdiction over the deceased’s last place of residence. If, however, it is impossible to establish the last place of the deceased person’s residence then the court exclusively competent to ascertain the acquisition will be the court with jurisdiction over the place where the assets are located. In exceptional cases (when it is impossible to determine the competent court under the above rules) the document confirming the acquisition of an inheritance will be issued by the District Court for the Capital City of Warsaw. What is important, to cases concerning the inheritance acquisition, exclusive jurisdiction applies, so the participants of the proceedings cannot change it by way of agreement.
Notarial certificate of inheritance
Notarial certificate of inheritance was introduced in Poland back in 2008 as an alternative to court proceedings to have the acquisition of an inheritance ascertained. A certificate confirming the acquisition of an inheritance and a notarial certificate of inheritance are two documents that produce the same legal effect. However, we will obtain a notarial certificate of inheritance immediately after a civil-law notary has carried out all the actions, which will significantly facilitate and speed up the settlement of inheritance matters after the death of the deceased. It must be noted that a notarial certificate of inheritance covers both intestate and testate succession. It does not, however, cover extraordinary wills and therefore only applies to written wills, wills made in the form of a notarial deed and wills made before a competent state authority.
Proceedings before a civil-law notary
Certification of inheritance by a civil-law notary requires personal presence of all intestate and testate heirs. A notarial certificate of inheritance may be also drawn up in the so-called successive manner, i.e., interested persons file appropriate declarations before different notaries, or even before a Polish consul abroad, at different times, based on the draft written record of inheritance compiled by a civil-law notary.
A notarial certificate of inheritance may be drawn up on the basis of a joint application of all the persons who may be considered intestate or testate heirs. If they are in dispute, a civil-law notary will not be able to certify the inheritance and the heirs will need to initiate court proceedings. It should be noted that even if all heirs are in agreement, a civil-law notary will not certify the inheritance in every case. A reason for a civil-law notary’s refusal to draw up a certificate of inheritance is, e.g., the civil-law notary’s doubt as to the potential heir, their share in the estate or jurisdiction of Polish bodies to settle the inheritance.
A written record of inheritance and the certificate of inheritance
Before drawing up a certificate of inheritance, a civil-law notary drafts the so-called written record of inheritance. Unlike in court proceedings, a civil-law notary is not authorized to undertake actions aimed at determining the circle of heirs. A certificate of inheritance is drawn up based on declarations filed by persons appearing before the notary in the course of drafting a written record of inheritance. The persons filing the declarations are obligated to tell the truth and are subject to criminal responsibility for making false statements.
Having made a written record of inheritance, a civil-law notary draws up a certificate of inheritance, unless they are in doubt regarding the heir and their shares in the inheritance. Immediately after issuing a certificate of inheritance, a civil-law notary enters the document into the register of certificates of inheritance.
A time limit to issue a certificate of inheritance
A certificate of inheritance cannot be issued sooner than six months from the opening of the succession if the known heirs failed to file a declaration of acceptance or disclaimer of an inheritance. Such a declaration can be made both to court and to a civil-law notary. If the deceased person has left a will, a civil-law notary also opens and reads out the document, of which a separate record is made.
Inheritance based on foreign court rulings
Whether a ruling entered in one country takes effect in another one depends on a significant number of factors, first and foremost being the question of which country issued a particular ruling and when. Some rulings on inheritance are recognized in Poland by operation of law and others must be recognized as effective or declared enforceable through a specific court procedure.
It should be noted that if the inherited assets include real estate located in Poland, then regardless of who the deceased person was and what their citizenship was, the courts exclusively competent to hear those cases will be the Polish courts. In practice this means that succession proceedings in this respect must be conducted in Poland.
As a consequence, a foreign court ruling concerning, e.g., the ascertainment of the acquisition of this particular real estate by inheritance cannot be recognized in Poland.
Inheritance of debts
Oftentimes, an indebted person fails to settle all of their debts before they die. In that case, the debts are inherited together with the estate of the deceased. An heir’s liability for estate debts may differ. It depends on whether the heir made a declaration of acceptance or disclaimer of the estate and which it was, whether the period concerned is the one prior to or after the acceptance of the estate, whether more than one heir has been called to succession and whether the estate has already been divided. The liability of an heir means that a creditor of the estate, that is, a person to whom the deceased owed money or a person for whom certain claims arose as a result of the opening of the succession, may enforce the amounts due to them against the assets of the heir in the event the heir fails to voluntarily fulfill their obligation to satisfy a claim.
Inheriting debts and assets is a right and not an obligation of an heir. This means that once the succession is opened upon the deceased person’s death, a person entitled to inherit the estate can:
- disclaim the inheritance – importantly, they cannot disclaim the debts while inheriting the assets; the decision is made with respect to the entire estate due,
- accept the inheritance by way of simple acceptance – in its entirety, and thus, take over all the assets and liability for all the debts of the deceased, whatever their value,
- accept the inheritance with the benefit of inventory – with liability for debts only up to the value of the assets of the estate left by the deceased.
Each heir has the right to decide individually if they accept or disclaim an inheritance. The decision must be made within 6 months of learning about a title to succession. As of October 18th, 2015, the absence of an heir’s declaration within this period is tantamount to accepting an inheritance with the benefit of inventory. To determine what assets belong to the inheritance and what their value is, an official estate inventory or an estate inventory having a form of a private document is compiled.
Liability for estate debts prior to accepting an inheritance
As per the Polish law, until an inheritance is accepted, the heir’s liability for the estate debts is limited to the value of the estate. Therefore, with respect to the heir’s liability, the estate is treated separately from the heir’s personal property. The liability borne by the heir is limited to the value of the estate and the debts may not be enforced against their personal property.
Liability for estate debts after accepting an inheritance
The acceptance of an inheritance, either by making a specific declaration or, in the absence thereof, by the operation of a legal fiction, makes the acquisition of an inheritance definitive. The heir’s liability also changes. They are now liable for the estate debts with their property.
Division of an inheritance and liability for the estate debts
Until an inheritance is divided, the heirs are jointly and severally liable for the estate debts. In practice, it means that the testator’s creditor may seek the whole or partial payment due to them from all or some of the heirs jointly or from each of them individually. If one of the heirs, as a result of a legal action, satisfies such a creditor, they may demand that the other heirs reimburse the respective portions of the payment made, more specifically, the portions that correspond to their respective shares of the estate.
The moment the inheritance is divided, the heirs become liable for the estate debts proportionately to their shares in the estate. If the division was made by the court, this will be when a ruling on the division of the inheritance becomes final and non-appealable and if the division was made by way of an agreement between the parties – when such an agreement is made. However, the above applies only when the division of the entire estate has been made. When the creditor wants to have their claim satisfied in full, they will be forced to sue all the heirs – each of them individually for the part of the estate debt they have inherited.
Estate inventory taken individually and official estate inventory
The heirs who have decided to accept an inheritance with the benefit of inventory divide the estate based on an official estate inventory or an estate inventory taken individually.
Estate inventory taken individually
An estate inventory taken individually, sometimes referred to as a “private” estate inventory may be submitted by an heir accepting an inheritance with the benefit of inventory, a legatee by vindication and an executor of a will. Submission of an estate inventory is a right and not an obligation of the above persons. In practice, however, an estate inventory taken individually will be compiled and submitted only if the estate contains debts and an heir wants the limits of their liability to be clearly determined. An estate inventory taken individually that is filed with a court must be compiled in accordance with the prescribed form. The competent court is a probate court or a court with jurisdiction over the place of residence of a person filing the inventory.
An estate inventory taken individually may also be submitted to a civil-law notary and then included in the record. At the request of an heir, a legatee by vindication, an executor of a will or an interim representative (tymczasowy przedstawiciel), the record including an estate inventory taken individually shall be drawn up by a civil-law notary. Then, the copy of the record is forwarded to a probate court.
A person compiling an estate inventory individually must exercise due diligence. They should, therefore, undertake actions intended to determine the assets and liabilities forming part of the estate. Moreover, they should establish whether the testator made any legacies by vindication and what the objects thereof are. If any of the testator’s obligations are not included in the inventory – then, once they are revealed, an heir will bear full liability for such obligations, even if they have accepted the inheritance with the benefit of inventory.
An estate inventory may be completed by a person submitting it. It is possible provided that new assets of the estate, objects of a legacy by vindication or estate debts are disclosed.
Drawing up of the inventory and submitting it to a court is free of charge. If the estate inventory is filed with a civil-law notary – the maximum notary fee for drawing up the record is PLN 200 net + VAT.
Official estate inventory
An official estate inventory is an official document compiled by a court enforcement officer following a court’s decision that an official estate inventory be taken, on an application of a person who proves to be an heir, a forced heir or a legatee, an executor of a will or a creditor with written proof of claims against the testator. The application is lodged with a probate court, which issues a decision to take an official estate inventory. The application may also be filed directly with a court enforcement officer competent to follow the court’s decision to take the inventory.
An official estate inventory taken by a court enforcement officer must contain a list of assets of the estate, objects of legacies by vindication and estate debts with the value thereof. A court enforcement officer is also obligated to determine and demonstrate the value of the estate assets, taking account of the things and rights in dispute. The value of the estate assets determined in an official estate inventory sets the limit of an heir’s liability.
If, after the inventory is made, a doubt arises as to whether all the assets of the estate and objects of legacies by vindication have been included in it and whether the debts listed in the inventory actually exist, a court, ex officio or upon an application of an heir, legatee by vindication, executor of the will, interim representative or creditor of the estate who proves that the estate assets disclosed in the inventory are insufficient to cover the estate debts, may order an heir to submit:
- a declaration that they have not concealed or removed any asset of the estate, and that they have not included any non-existent debts in the inventory,
- a list of the assets of the estate disclosed in the inventory, if they are known to them, with the location of movables and documents concerning property rights and their legal basis,
- an assurance that the declaration and the inventory submitted are correct and complete.
An heir’s liability is no longer limited if the heir, acting deceitfully, has failed to recognize the assets of the estate or objects of legacies by vindication in an estate inventory compiled individually or disclose them for the purpose of an official estate inventory or has included the non-existent estate debts in an estate inventory compiled individually or disclosed them for the purpose of an official estate inventory. If, however, the heir failed to disclose certain assets of the estate due to lack of knowledge, their liability remains limited.
Taking an official estate inventory is subject to court and court enforcement officer fees – a court fee for an application is PLN 100 and a fixed fee charged by a court enforcement officer is PLN 400. On top of that, there are cash expenses incurred by a court enforcement officer, if any, when carrying out their actions, and it may also deem necessary to pay for valuation made by property adjusters.