Inheritance - legal advice
Oral will instead of a handwritten (allographic) will
In the decision of September 9, 2021 (V CSKP 117/21) the Supreme Court decided that if a handwritten (allographic) will is invalid for formal reasons, the court may decide that we are dealing with an oral will in this case. For example, if the will of 2 testators is written in the will (which makes the will of Art.951 of the Civil Code invalid), it can be considered two oral wills. The Supreme Court stated: "If each of the testators made a declaration of his last will with the presence of three witnesses, two separate oral wills were drawn up. The declaration of each testator retains its independence as an ordinance of the last will and there is no - as is the case with a document - a substrate mechanically combining several regulations into one act. The validity of an oral will is not affected by the fact that the oral declarations of the last will were made at the same time, place and to the same witnesses, that they were related in content, or even whether they were made consecutively or alternately. "
Liability of the heir entitled to a reserved share for ordinary entries and instructions
The Supreme Court in a resolution of September 8, 2021 (III CZP 7/21) stated that the basis for calculating the share due to the entitled holder (Article 998 § 1 of the Civil Code) is the inheritance share referred to in Art. 931 § 1 of the Civil Code, taking into account the subjective scope indicated in Art. 992 of the Civil Code Moreover, the Supreme Court ruled that the person entitled to a reserved share appointed to inherit is liable for ordinary entries and orders only up to the amount of the surplus exceeding the value of this inheritance share.
The Supreme Court answered the following questions:
When determining the liability of the heirs pursuant to Art. 998 § 1 of the Civil Code, one should take into account the surplus exceeding the value of the inheritance share, which is the basis for calculating the due reserved share, i.e. the part of the inheritance calculated on the basis of Art. 931 § 1 of the Civil Code, or the surplus exceeding the value of the legacy of the heir encumbered with the subscription, i.e. the part of the inheritance calculated on the basis of the fraction obtained pursuant to Art. 991 § 1 of the Civil Code (in both cases, taking into account Art.992 of the Civil Code)?
The difference between the method of calculating the inheritance share in Art. 931 § 1 of the Civil Code and Art. 991 § 1 of the Civil Code is such that Art. 931 § 1 of the Civil Code determines the original share in the inheritance specified in the decision on the confirmation of inheritance purchase. On the other hand, Art. 991 § 1 of the Civil Code depending on the circumstances, only 1/2 or 2/3 of the inheritance share from the decision on the confirmation of inheritance acquisition.
The judgment of the Supreme Court means that the liability of the reserved shareholder appointed to inherit for ordinary entries and orders is limited only to the amount of the excess exceeding the value of the inheritance share calculated on the basis of Art. art. 931 § 1 of the Civil Code Therefore, the court chose a variant where this liability is smaller. However, it should be remembered that in both variants, donations were not added to the inheritance.
Loss of a reserved share due to an excessively long process
The claim for the reserved share is transferred to the heir of the person entitled to the reserved share only if the heir belongs to the persons entitled to the reserved share after the first testator (Article 1002 of the Civil Code). This means that if there are no heirs entitled to a reserved share after the first testator (i.e. his descendants), the claim for a reserved share expires. Even bringing a lawsuit will not help. If the entitled person dies during the trial and there are no heirs entitled to a reserved share after the first testator, the court will discontinue the proceedings. This was confirmed by the Supreme Court in the judgment of April 28, 2010, III CSK 143/09, LEX No. 589808. This is an exception to the rule that the length of the trial may not be to the detriment of the party
So what to do when there is a fear of the death of the entitled person and the end of the court trial is not in sight? The simplest method is to assign a reserved share to a third party (who is more likely to live to the end of the trial). This person can easily complete the lawsuit.
The inheritance deal was coming
On March 19, 2021, the Supreme Court confirmed that living inheritance contracts are invalid (III CSKP 69/21). As stated by the Supreme Court and pursuant to Art. 1047 of the Civil Code, subject to the exceptions provided for in the Act, the agreement on the inheritance of a living person is invalid. Chodazi that she would embarrass the parties concluding such an agreement. After the conclusion of the inheritance contract, cancellation of the legal effects of such a contract would only be possible by way of an agreement revoking the previously concluded inheritance contract. The will and the testator may at any time revoke it without the need to justify his decision or to involve other people when declaring his will. The admission of succession contracts is therefore inconsistent with the principle that the testator is entitled to determine his last will until his death.
Inheritance and donation tax exemption
In Polish law, all issues regulating obligations and exemptions from paying taxes on inheritance and donations are regulated by the Act of July 28, 1983 on inheritance and donation tax (hereinafter referred to as the Act).
Tax exemptions are regulated by Article 4a of the Act, pursuant to which the above-mentioned tax acquisition of property or property rights by a spouse, descendants (children, grandchildren and further), ascendants (parents, grandparents and further), stepson, siblings, stepfather and stepmother. However, in order to be able to take advantage of the privilege, it is necessary to meet the requirements specified in Art. 4a paragraph. 1 conditions, namely:
- the acquisition of property or property rights should be reported to the competent head of the tax office within 6 months from the date of the tax obligation, and in the case of acquisition by inheritance - within 6 months from the date on which the court ruling confirming the acquisition of the inheritance becomes final. At this point, it is worth quoting the most recent judgment of the Provincial Administrative Court of July 27, 2021 (file reference number I SA / Go 168/21), which refers to the six-month deadline for reporting in a pandemic situation. The court decided that Art. 15zzr paragraph. 1 of the COVID-19 Counteracting Act applies to regulations contained in administrative law in a broad sense, and therefore to tax law, including Art. 4a paragraph. 1 point 1 of the Act. Pursuant to the cited provision of the covid act, the legislator suspends the running of time limits for the duration of the epidemic threat or state of the epidemic. Therefore, in the current situation, the 6-month period is extended.
- If the subject of the acquisition by way of a donation or order of the donor is cash, and the value of the property acquired jointly from the same person in the period of 5 years preceding the year in which the last acquisition took place, added to the value of recently acquired property and property rights, exceeds the amount 9637 zlotys. This amount should be documented with a proof of transfer to the buyer's payment account, on his account, other than a payment account, at a bank or a savings and credit union, or by a postal order.
The consequence of failure to report the acquisition of an inheritance or a donation on the indicated date to the competent tax office results in taxation of activities in accordance with the rules specified for buyers included in tax group I
The legislator also provides for situations in which the entity learns about the acquisition of property or property rights after the expiry of the indicated period. In this case, the principles set out in point 3 shall apply if the buyer reports these items or property rights to the head of the tax office not later than within 6 months from the date on which he learned about their purchase, and makes it plausible that he later becomes aware of their purchase.
The obligation to notify does not apply to cases where the acquisition takes place on the basis of an agreement concluded in the form of a notarial deed or in this form a declaration of intent of one of the parties has been submitted.
To sum up, in order to take advantage of the exemption from inheritance and donation tax, two conditions must be met: be in the circle of eligible persons and report the acquisition of property or property rights to the competent head of the tax office within 6 months from the date of the tax obligation.
A debt collection record for the general rights and obligations of a partner in a partnership
The institution of the decree of will in the event of death (the so-called will) was regulated by the provisions of the Act of 23 April 1964 of the Civil Code Act (hereinafter the Civil Code). In the third title of the Act, we can find the described, inter alia, types of wills or forms of their preparation.
The subject of the will may also be the so-called debt collection entry, regulated in art. 9811 - 9816. The debt collection legacy is an exception to the standard reference to all or part of the inheritance. It allows you to dispose of a specific object included in the estate. A notarial deed is a form of drawing up an effective debt collection record. As in the case of a will, the legatee acquires the subject of the legacy upon the opening of the inheritance (i.e. upon the death of the testator). Pursuant to the regulation contained in Art. 9811 § of the Civil Code, the subject of a debt collection legacy may be:
- the thing marked as to its identity;
- transferable property right;
- enterprise or farm;
- establishing for the benefit of the legatee the use or easement;
- all the rights and obligations of a partner in a partnership.
All the rights and obligations of a partner in a partnership are not defined in the Commercial Companies Code. In accordance with the prevailing doctrine, the total number of rights and obligations may define the possibility and, at the same time, the obligation to participate in a company. We then receive privileges (e.g. the right to conduct affairs or represent the company) and corporate and material obligations (e.g. participation in the company's losses).
In other words, rights and obligations in a partnership can be described as quasi "shares" in the partnership. Due to the personal nature of partnerships, the legislator only recently made it possible to make a debt collection clause on the rights in question.
European Certificate of Inheritance
On August 17, 2015, the provisions on the introduction of the European Certificate of Succession came into force. The issued regulation specifies, inter alia, the jurisdiction of the courts in inheritance matters or the determination of the applicable law in the inheritance of persons residing abroad in their country. The so-called European Certificate of Succession - a document uniform throughout the European Union (with the exception of Great Britain, Ireland and Denmark) facilitating the demonstration of the right to inheritance in all Member States.
According to the Regulation, the law applicable to all succession matters is that of the country in which the deceased had his or her habitual residence at the time of death. For example, a Pole who died and lives in France will leave his property there, and the provisions of French law apply to settling matters related to inheritance. Another situation will be an example when the person leaves a will in which he specifically specifies that his heirs are to inherit according to Polish law - which is also possible.
The European Certificate of Inheritance is a document that confirms receipt of an inheritance or part of it. Its big advantage is that its effects are the same across the EU, regardless of the country in which it was issued. No further formalities are required for it to have legal effect.
Courts (excluding court referendaries) and notaries have the right to issue a certificate. The court and notarial certificate of inheritance is to function equally, and the choice of the court or notary route rests with the person concerned.
Abuse of the subjective right (Article 5 of the Civil Code) and reduction or deprivation of a reserved portion
The reserved portion is one of the institutions of inheritance law. Its purpose is to protect the testator's relatives (i.e. the deceased) who would be entitled to inherit the deceased under the provisions of the Act. The reserved portion applies to situations in which these persons were omitted in the will or, for example, when the testator disposed of most of the property during his lifetime by way of donations to other people.
The value of a reserved share is always expressed in a specific amount of money. It is not possible to demand the release of, for example, certain items from the inheritance. In order to calculate its amount, first of all, pay attention to the provisions of Art. 931 and following of the Civil Code, and then under Art. 991 of the Civil Code, however, one should also remember about numerous special provisions.
Due to the specificity of the institution, which is a reserved share, it can often be treated as an opportunity to obtain money for deceased relatives. Although the law provides for the possibility of disinheriting heirs, pursuant to Art. 1008 of the Civil Code, as well as declaring inheritance unworthy, in accordance with art. 928 of the Civil Code, however, these provisions are not sufficient in all situations. Another basis that could be used to deprive someone of the right to a reserved share is Art. 5 of the Civil Code, pursuant to which:
"You cannot make use of your right that would be contrary to the socio-economic purpose of this right or to the principles of social coexistence. Such an act or omission of the rightholder is not considered to be an exercise of the law and is not protected. "
This provision allows for the assessment of each case and allows to prevent situations, the legal consequences of which would lead to socially unacceptable solutions. The Supreme Court allows the application of this provision also in cases concerning a reserved share, but it may only take place in exceptional situations, in which the above provisions turn out to be insufficient (Decision of the Supreme Court of 27 August 2020, V CSK 173/20, LEX No. 3053969) . The Court of Appeal in Warsaw also allowed the application of Art. 5 to the cases of the reserved portion, emphasizing, however, that these are particularly blatant cases in which it will make it possible to satisfy the public feeling of justice. This court rejected the application of Art. 5 in the case at hand. According to the facts, the testator's son had been permanently living outside Poland for over 10 years. During this period, he came to Poland twice and visited his mother. They also maintained regular telephone contact. For several months, there was a conflict between the testator and her son over the claims regarding the division of her property, but with time it expired. The deceased's daughter-in-law had regular contact with her, who also visited her. The son did not attend his mother's funeral either. In the court's opinion, these circumstances did not justify the application of Art. 5, because despite the fact that the maintained relations were not close and direct, they were permanent, the conflict quickly passed, and the testator was in direct contact with her son's wife (Judgment SA in Warsaw of November 10, 2020, V ACa 371/20, LEX no.3105634).
Written declaration of inheritance rejection in court
Pursuant to Art. 1018 § 3 of the Civil Code, one of the ways to decline the inheritance is to submit a written declaration to the court. Such a declaration should be made in writing with an officially certified signature. The power of attorney to perform this activity must also take this form.
It is very important to remember that the deadline for submitting such a declaration is 6 months from the date on which the heir learned about the title of his appointment. Failure to submit such a declaration on time is tantamount to accepting the inheritance with the benefit of inventory.
The heir may submit a declaration to the district court competent for his place of residence or stay. The court is obliged to immediately send such a declaration with attachments to the inheritance court, i.e. the district court with territorial jurisdiction over the inheritance acquisition case, determined according to the testator's last place of residence. Moreover, such a declaration may also be submitted directly to the inheritance court in the course of proceedings for confirmation of inheritance acquisition.
It is unacceptable to submit a declaration of rejection of inheritance provided or subject to a time limit, because then the rejection of the inheritance will be invalid.
Pursuant to Art. 641 of the Code of Civil Procedure, the declaration must include the name and surname of the testator, the date and place of his death, the place of his last residence, the title of appointment to the inheritance, the content of the submitted declaration and listing of all persons belonging to the statutory heirs known to the declarant, indication of any will even if the person making the declaration considered it invalid. In addition, data on the content and location of the indicated wills should be provided.
The declaration must be accompanied by an extract of the testator's death certificate or a final and binding court decision declaring him deceased or confirming death, if the evidence has not already been submitted. The court is then obliged to notify all persons who, according to the declaration and the documents presented, are called to inherit about the rejection of the inheritance.
A fixed fee of PLN 50 is collected upon receipt by the court of the declaration of rejection of inheritance.
The refusal to accept a declaration of rejection of inheritance may be subject to instance control only when an appeal is examined against the decision confirming the acquisition of an inheritance.
Finally, it is worth adding that submitting a written declaration to the court is not the only way to reject an inheritance. You can also do it orally before a court or in writing before a notary or consul.
How much does an inventory cost?
The inventory is an official document drawn up by a bailiff pursuant to a court order. The inventory is made by court bailiffs at the request of the person concerned or at the request of the court where the inheritance proceedings were held.
The inventory may include:
- one-family houses,
- building plots and farms,
- residential premises,
- development investments,
- movables: motor vehicles, home furnishings, works of art, construction equipment, jewelery,
- funds in bank and securities accounts,
- shares in limited liability companies and shares in joint stock companies.
The price of the inventory always depends on the size of the estate to be estimated. For this reason, it is impossible to determine one price, as each inventory list is different.
Pursuant to Art. 40 of the Act on bailiffs' costs, the amount of the fee for the application for the preparation of the inventory is PLN 400. This amount is increased by expenses for third parties in the form of:
- correspondence costs (usually around PLN 60-100),
- inquiry costs:
- ZUS - PLN 36.55,
- Tax Office - PLN 35,
- Electronic Land and Mortgage Registers - PLN 20,
- Credit Information Bureau - PLN 9.84,
- costs of experts in the field of valuation of movable property - approx. PLN 30 per hour of expert work,
- expert costs in the field of motor vehicle valuation - the price depends on the type of vehicle.
In total, the price of an expert in the field of real estate appraisal will range from PLN 350 to PLN 3,000 - depending on the size of the property. The appraisal of a studio flat will be cheaper than the appraisal of a single-family house.
It is estimated that the price for an inventory of property, which includes various assets, e.g. real estate and movable property, may amount to as much as approximately PLN 2,000 in total.
The time it takes to compile the inventory largely depends on the property that is part of the estate. Thanks to the technologies of obtaining information by bailiffs (Electronic Land Registers, Credit Information Bureau, OGNIVO system), the bailiff is able to determine the basic components of the estate within 7 - 14 days.
In addition, it should be remembered that the bailiff is obliged to make arrangements for all possible components of the estate. This means that it is not limited only to the elements indicated by the person concerned, but to all elements included in the estate.
Responsibility for the inheritance debts of heirs and legatees
Inheritance debts are liabilities of the testator that arose before his death and those related directly to his death. The provisions of the Civil Code address the issue of heirs' liability for inheritance debts.
Under Art. 1034 § 2 of the Civil Code, the heirs are liable for the inheritance debts in relation to the size of the shares from the moment of the division of the inheritance. The result of the division of the inheritance is the cessation of joint and several liability between the heirs. From then on, each heir is liable for debts in proportion to their share in the estate.
In the decision of 20 September 2000 (file no. I CKN 295/00), the Supreme Court indicated that the subject of the inheritance division may only be assets, while the division of debts is effected by operation of law, in accordance with the division of assets. In accordance with the jurisprudence of courts, the subjective scope of the heirs' liability is determined on the basis of a legally valid decision on the acquisition of an inheritance, a registered certificate of inheritance or a European certificate of succession. This means that the objective and subjective scope of liability for the debts of the succession is determined on the day of opening the inheritance.
Otherwise, the scope of responsibility towards heirs and legatees is determined by Art. 10342 of the Civil Code. According to its wording, from the moment of the division of the inheritance, the heirs and persons for whom the recovery entries have been made, are liable for the debts of the inheritance in proportion to the value of the benefits received by them. In this situation, the liability is determined in relation to the contribution and not the share in the inheritance. In the case law of courts it is emphasized that the provision of Art. 10342 of the Civil Code does not apply to the proportional distribution of liability in the relationship between heirs, but only in the relationship between legatees and heirs.
According to the linguistic interpretation of Art. 1034 § 2 of the Civil Code the distribution of inheritance debts is therefore proportional to the size of the heirs' share in the inheritance, while pursuant to Art. 10342 of the Civil Code, the distribution of debts takes place in proportion to the values received by the heirs and legatees of the benefits. This interpretation, however, raises doubts due to inconsistent jurisprudence and a different position of the doctrine.
Courts, as a rule, apply the linguistic interpretation of the commented provisions, assuming that the legatee is responsible for the inheritance debts jointly with the heirs following the division of the estate in proportion to the gain obtained (such as the District Court in Olsztyn of July 3, 2017, reference number X Ns 1762/16).
In the judgment of May 30, 2017, file ref. II Ca 1527/16 The District Court in Szczecin decided that pursuant to Art. 1034 2 of the Civil Code from the moment of the division of the inheritance, the heirs and persons for whom the vindication entries have been made are liable for the inheritance debts in proportion to the value of the benefits received by them (similarly the District Court in Kamienna Góra in the judgment of January 25, 2019, file no. IC 786 / 17). However, these judgments were made in the factual state in which there were no legatees, only heirs.
According to the position of the District Court in Szczecin of December 27, 2018, file ref. II Ca 553/18, the creditor should therefore show the proportion in which the debtor is responsible for the inheritance debt according to the gain received. In such a case, it is necessary to show the value of the acquisitions of all beneficiaries of the inheritance, so both the heirs and legatees, and only on this basis it is possible to determine the proportion in which they are responsible for the inheritance debts.
It needs to be indicated that the legal doctrine, as a rule, does not accept a linguistic interpretation of Art. 10342. It also rejects the rule lex posterior derogat legi anteriori, which means that a provision introduced later derogates from the earlier one. According to this principle, Art. 10342 in favor of the division of liability for inheritance debts in proportion to the value of the benefits received should apply to the situation of legatees and heirs, as it was introduced only in 2011.
According to the interpretation of some of the doctrine, "one should support the interpretation according to which Art. 10342 concerns only the distribution of liability between the legatees and all heirs, while art. 1034 § 2, and therefore the heirs after the division will always be liable in proportion to their share in the estate, and not the benefit obtained from the division "(P. Księżak, Record of debt collection, pp. 182-183).
On the other hand, according to G. Gorczyński, "misreading of the concept of value of the gain referred to in Art. 10342 of the Civil Code, some authors argue that this provision applies only to the division of liability for inheritance debts between the legatees and all heirs. As for the r placing this responsibility only on heirs, the proper basis is to remain Art. 1034 § 2 of the Civil Code, which means that after the division of the inheritance, the heirs will be responsible for the inheritance debts in proportion to their share in the inheritance, and not according to the increments obtained at the division of the inheritance "(G. Gorczyński, Code of Civil Law, Comment. Volume I, ed. Magdalena Habdas, Mariusz Fras).
The courts have not yet made an in-depth analysis of the relationship between these two provisions, which may be done by the Supreme Court in the future. How the court will determine the liability of the legatees and heirs to creditors for inheritance debts will be of major importance in a situation where the division of the estate is divided differently than in the proceedings for confirming the acquisition of inheritance.
Transfer of property rights after the death of an employee
One of the ways of termination of an employment contract specified in the Labor Code is the death of an employee. This is due to the impossibility of further performance.
Art. 631 §2 of the Labor Code stipulates that the property rights under the employment relationship are transferred in equal parts to the spouse and other persons who meet the conditions required to obtain a survivor's pension according to the Act on Pensions and Pensions. In the absence of such persons, these rights shall be inherited.
According to the jurisprudence, the property law from the employment relationship within the meaning of Art. 631 § 2 of the Labor Code there is property law closely related to this employment relationship and directly arising from it. This means that other property rights related to the employment relationship only indirectly are not subject to the inheritance mechanisms provided for in this provision.
According to Art. 65 sec. 1 and 2 and article. 67-71 of the Act of 17 December 1998 on pensions from the Social Insurance Fund, survivor's pension is granted to eligible family members of a person who at the time of death had an established right to an old-age or disability pension or met the conditions required to obtain one of these benefits. A survivor's pension is also available to eligible family members of a person who was in receipt of a pre-retirement allowance or a pre-retirement benefit at the time of death.
The following family members are entitled to a survivor's pension:
- own children, children of the other spouse and adopted children;
- grandchildren, siblings and other children accepted for upbringing and maintenance before the age of majority, excluding children accepted for upbringing and maintenance in a foster family or family orphanage;
- spouse (widow and widower);
- parents, stepfather and stepmother as well as adoptive parents.
Own children, children of the other spouse and adopted children are entitled to a survivor's pension:
- up to the age of 16,
- to complete school education, if they are over 16 years of age, but no longer than until they reach 25 years of age, or
- irrespective of their age, if they have become completely incapable of work and independent existence, or completely incapable of work during the period referred to in item 1 or 2.
Grandchildren, siblings and other children accepted for upbringing and maintenance are entitled to a survivor's pension if, under the conditions indicated above:
- have been accepted for upbringing and maintenance at least one year before the death of the insured, unless the death resulted from an accident, and
- they are not entitled to a pension after their deceased parents, and when the parents are alive, if:
- They cannot provide their livelihood either
- the insured person or his / her spouse was their guardian appointed by the court.
A widow and a widower are entitled to survivors' benefits if:
- at the time of the spouse's death, they had reached the age of 50 or were unable to work, or
- they bring up at least one of the children, grandchildren or siblings entitled to a survivor's pension after the deceased spouse, who has not reached 16 years of age, and if they are in school - 18, or if they look after a child who is completely incapable of work and independent existence or completely incapable of work, entitled to a survivor's pension.
The right to survivor's pension is also acquired by a widow or widower who has reached the age of 50 or became incapable of work after the death of the spouse, but not later than within 5 years from his death or after the spouse ceased to raise children.
A divorced spouse or a widow who was not married to her husband until the day of her death, is entitled to a survivor's pension if, in addition to meeting the conditions set out in points 1 or 2, on the date of her husband's death, she was entitled to maintenance on her part, established by a judgment or court settlement .
A widow and widower who does not meet the conditions for survivor's pension and does not have the necessary sources of income, are entitled to a periodic survivor's pension:
- for a period of 1 year from the death of the spouse;
- during the participation in an organized training aimed at obtaining qualifications to perform gainful employment, but not longer than for 2 years from the date of the spouse's death.
Parents are entitled to a survivor's pension if:
- the insured person contributed to their maintenance immediately before their death,
- they meet the conditions for widow and widower as well as for age.
Differences between inventory and inventory list
The heir who accepted the inheritance with the benefit of inventory should take care of drawing up an inventory or inventory of the inheritance. The heir is then liable for the inheritance debts only up to the value of the active status of the inheritance determined in one of these documents. The heir decides whether to submit an application for an inventory to be drawn up by a bailiff or for an inventory list to be drawn up by a court or a notary. -
The purpose of drawing up the inventory and the inventory list is therefore to determine the composition of the testator's property to determine the limits of liability of the heirs accepting the inheritance with the benefit of the inventory and debt collection legatees for debts left by the testator. Both the inventory list and the inventory list list the items included in the inheritance and the items of the collection entries, taking into account their value according to the state and prices at the time of opening the estate and the debts of the estate as at the opening of the estate. How, then, is the inventory different from the inventory?
The inventory is an official document, because it is drawn up by the bailiff on the basis of the court's decision to draw up the inventory. The bailiff takes appropriate steps and obtains information about the testator and his property in order to determine the composition of the estate. The inventory is to contain a list of inheritance assets - the testator's assets that belonged to him and the liabilities of the inheritance, i.e. all burdens and debts that the testator had and did not settle during his lifetime. According to Art. 637 of the Code of Civil Procedure, anyone who proves to be an heir, legatee, executor, or creditor of the will, may request an inventory.
The inventory list, on the other hand, is a private document, it is not compared to the inventory prepared in the course of court proceedings. The heir may draw it up independently, without the participation of a bailiff. The inventory list acquires legal value upon submission to a court or a notary public. The law regulates only the template of such a list. According to Art. 10311 § 1 of the Civil Code, the heir who accepted the inheritance with the benefit of the inventory, the debt collection legatee, and the executor of the will, may make a list of the inventory. It is worth noting that this catalog is narrower than the catalog of people entitled to request an inventory. Moreover, the submission of the inventory is only possible with regard to deceased persons after December 18, 2015.
Finally, it is worth emphasizing that in the case of preparing both the inventory and the inventory list, the inventory is more important in the case of discrepancies in the content of these documents. This means that from the moment the inventory is drawn up, the heirs are bound by the content of the inventory and not the inventory.
Oral will during an epidemic
The provisions of the Civil Code create a kind of instrument of protection for a person who has not had time to draw up a will and found himself in a special situation. It is the institution of an oral will, which consists in the fact that if there is a fear of the testator's imminent death or if due to special circumstances it is impossible or very difficult to maintain the usual form of the will, the testator may declare his last will orally with the presence of at least three witnesses. It would seem that in a situation of an epidemiological threat with the COVID-19 virus, oral wills may be used, not only in a situation where there is a threat of death.
In its decision of 3 December 2010, I CSK 37/10, LEX no. 694228, the Supreme Court specified what other circumstances, apart from the fear of imminent death, may justify the preparation of an oral will. Within the meaning of this provision, special circumstances may include such events as:
- interruption of communication,
- the testator's stay in an infectious diseases hospital,
The condition is that each of the above-mentioned circumstances makes it impossible or significantly difficult for the testator to draw up an ordinary will. However, it is not required that in these situations the testator should also fear imminent death.
The Supreme Court drew attention to another side of this problem in the resolution of September 23, 1958, 3 CO 17/58, LEX No. 119687. An oral will is usually drawn up in situations where the testator's imminent death may occur, but there may be cases where Immediate death is justified not only in relation to the testator, but also in relation to people to whom he declares his will. The Supreme Court cited epidemics and hostilities as examples of such dangerous situations. The provision of the act stipulates that the content of a will, if it is not written, may be confirmed by a joint declaration of at least two witnesses. It may happen that during a war or epidemic more than one witness will die and it will be impossible to establish the content of the will. In such a situation, in cases where there is a fear of the imminent death of witnesses, the testator may declare his will to a greater number of witnesses than the statutory minimum.
The views presented complement each other. A testator's serious illness, life-threatening or sudden deterioration of his health, justifies the preparation of an oral will due to the fear of the testator's imminent death. In addition, regardless of his state of health, the occurrence of an epidemic may spontaneously justify testing in a special form, if the testator is unable to make an ordinary will or it would be seriously impeded.
The deadline for submitting a declaration of rejection of inheritance by the minor
According to Art. 1015 of the Civil Code, a declaration of acceptance or rejection of inheritance may be submitted within 6 months from the date on which the heir learned about the title of his appointment - about the death of the testator. Failure to make this declaration on time is tantamount to accepting the inheritance with the benefit of inventory. However, when the heir is a minor, it is necessary for the guardianship court to issue a permit to reject the inheritance by a statutory representative on behalf of the minor. Doubts may arise in a situation where an application has been submitted to the guardianship court within the six-month period, but the declaration of rejection of the inheritance itself after this period has expired.
In the decision of the Supreme Court of 28 May 2015 (III CSK 352/14) it was stated that the time limit specified in Art. 1015 § 1 of the Civil Code is a strict deadline and after it expires, the heir's right to submit a declaration of acceptance or rejection of the inheritance expires. It was emphasized that the introduction of such a short deadline is dictated by the need to quickly establish the circle of heirs in the interests of themselves and of the creditors of the estate. However, these considerations cannot obscure the need to protect the interests of the heirs of minors. Contrary to heirs with full legal capacity, they experience significant limitations in the possibility of free rejection of inheritance in the form of the obligation to obtain the court's consent to reject the inheritance.
The Supreme Court stated that in a situation where the law requires the consent of the court which makes effective rejection of the inheritance conditional, the application by the legal representative of the heir to the guardianship court for it before the deadline for submitting the declaration of rejection of the inheritance causes the period to be interrupted. Therefore, Art. 123 § 1 point 1 of the Civil Code by analogy.
It should be remembered that the condition for the application of the indicated provisions is that the minor's representative must exercise due diligence by submitting an application to the guardianship court no later than within the time limit specified in art. 1015 § 1 of the Civil Code
Condition for the heir to benefit from the tax exemption
The closest person to the testator is exempt from inheritance tax. This applies to the spouse, descendants, ascendants, stepson, siblings, stepfather and stepmother, provided that they report the acquisition to the competent head of the tax office within 6 months from the date on which the tax obligation arises or from the date on which the court judgment confirming the acquisition of the inheritance becomes final.
If the heir found out about the acquisition of inheritance after these deadlines, in accordance with art. 4a sec. 2 of the Act on Inheritance and Donation Tax, tax exemption is available. However, he must report the acquired goods or property rights to the head of the tax office not later than within 6 months from the date on which he learned about their purchase. Moreover, he must prove that he actually became aware of the acquisition of the inheritance later.
In the judgment of the Supreme Administrative Court of March 4, 2020, file ref. II FSK 803/18, the court decided that the described regulation applies not only to cases where the heir, for reasons beyond his control, did not know about the acquisition of the inheritance and the validation of the decision on its acquisition. Tax exemption will also take place when the heir did not know what the property was actually inherited.
A third party within the meaning of Art. 1028 of the Civil Code
Article 1028 of the Civil Code tells about what will happen if a right belonging to the estate is disposed of by an unauthorized person. This provision applies to a person who has obtained a declaration of inheritance or an inheritance certificate, but is not in fact an heir, and disposes of the right belonging to the inheritance to a third party. If, by adopting a law, a third party acts in good faith, he acquires the right or is released from the obligation.
Art. 1028 of the Civil Code is one of the few statutory exceptions to the principle that you cannot dispose of someone else's right (nemo plus iuris in alium transferre potest quam ipse habet). It is emphasized that the purpose of this solution is the protection of legal transactions, combined with the principle of protection of a third party acting in good faith and in trust in official documents, such as copies of court decisions or excerpts of registered certificates of succession.
The Supreme Court in the resolution of July 25, 2019, file ref. III CZP 12/19 undertook to consider the subjective scope of Art. 1028 of the Civil Code, in particular whether it also applies to acts between persons who belong to the circle of statutory heirs, but who are temporary heirs. Such a situation may take place, as in the cited case, in the case of the birth of a live child conceived at the time of the inheritance opening or a forged will.
In the court's opinion, a buyer belonging to the circle of statutory heirs cannot be considered a third party within the meaning of this provision. This means that a person belonging to the circle of statutory heirs to whom the heir, who has confirmed the acquisition of the inheritance, disposed of the right belonging to the inheritance, did not acquire this right if someone else is the actual heir.
In the opinion of the court, taking into account the exceptional circumstances, the lack of exclusivity of the legitimate character of the ascertainment of inheritance acquisition and the registered deed of inheritance certification in relations between the heirs, it should be concluded that art. 1028 of the Civil Code According to the Supreme Court, protection of the right of inheritance, as a constitutionally protected value, must be of a real nature.
Sale of a share in an item belonging to the estate.
If you acquire an interest in an inheritance, you may lose it. This may happen even when the seller has a court decision confirming the acquisition of the inheritance and is entered in the land and mortgage register.
According to art. 1036 of the Civil Code, the heir may, with the consent of the remaining heirs, dispose of (e.g., sell) a share in an item belonging to the estate. If any of the other heirs do not consent, the regulation is ineffective insofar as it would infringe the rights of the heir under the provisions on the division of the estate. We are dealing here with the so-called relative ineffectiveness. This means that the contract is valid, but may be ineffective against the heir who has not agreed to sell the share. He may then claim a division of the estate as if there was no share purchase agreement at all.
Such a right arises only if the rights of the heir who did not express his consent were violated. For example, if the heir who has made the sale has received donations during his lifetime in excess of his share of the inheritance, then it should be omitted from the division of the estate. Then the heirs who did not consent should receive the entire inheritance, and the acquirer of the share in the property belonging to the inheritance will lose his share. He may possibly pursue claims against the vendor under the warranty for legal defects.
Inheritance of a claim for compensation
In a judgment of November 28, 2019 (III CSK 284/17), the Supreme Court confirmed the prohibition of inheriting a claim for compensation, except if the testator had already died during the redress process. The regulation provided for in art. 445 § 3 of the Civil Code. is a lex specialis in relation to art. 922 of the Civil Code The possibility of inheriting the claim results from the assumption that the death of the injured party during the trial should not bring benefits to the person responsible. As an exception to the general rule provided for in Article 922 of the Civil Code, art. 445 § 3 of the Civil Code. it must be interpreted narrowly, and the compensatory function in this respect must be understood broadly. The claim that passed to the heirs becomes a specific claim, which is part of the inheritance.
Lease agreement and inheritance
In accordance with art. 691 § 1 and 2 of the Civil Code, in the event of the death of a tenant of a dwelling, the tenancy of the premises shall commence if they have lived permanently with the tenant until his death: a spouse who is not a co-tenant of the premises,
- the children of the tenant and his spouse,
- other persons towards whom the tenant was obliged to provide maintenance,
- a person who was actually living together with the tenant.
The Supreme Court in its judgment of 4 December 2019 (I CSK 506/18) stated that the above-mentioned stepping into the lease is completely independent of inheritance rights. The law arising from the aforementioned provision is intended to protect close relatives to the current tenant of the premises, who lived with him until the time of death, including the tenant's children. The exercise of this right occurs when the entitled persons are not at the same time heirs or fall into this category, but for various reasons they do not exercise inheritance rights.
Who can be deprived of the reserved share?
Pursuant to the provisions of the Civil Code, persons who are called to inherit statutory rights have certain rights in situations where they have not been mentioned in the will. They are then entitled to half the value of the inheritance share that would fall to them in the event of statutory inheritance. However, if the entitled person is permanently incapable of work or if the minor is entitled to the descendant, the amount due shall be increased to two-thirds of the value of that share.
This regulation is in line with the principle that no one can, in the event of his death, dispose of his property completely freely, apart from his loved ones. It can be said that the testator has a moral obligation towards his relatives. The purpose of such regulation is to protect the family against the decisions of the testator and is to serve a fair distribution of the estate.
However, the Civil Code also regulates the situation in which a close relative will be deprived of his full share due to his unworthy behavior. The preservation may be reduced and you will not even belong to a relative who:
- intentionally committed a serious crime against the testator or one of his closest relatives;
- tricked or threatened the testator to draw up or revoke a will or in the same way prevented him from doing one of these activities;
- intentionally hid or destroyed the testator's will, forged or rewritten his will, or knowingly used a will by another person forged or forged
- against the will of the testator, he acted persistently in a manner contrary to the principles of social coexistence;
- persistently failed to fulfill his family obligations towards the testator.
The role of the court is then to balance the property interests of the testator's immediate family member and the breach of social coexistence. In a situation where nobody has requested in time to deprive a reserved share of those entitled who have met any of the above conditions, it is possible to apply the clause of the rules of social coexistence contained in art. 5 of the Civil Code.
In its judgment of June 16, 2016, V CSK 625/15, the Supreme Court stated that it cannot be concluded that determining the premises of unworthiness of inheritance and disinheritance excludes the admissibility of a reduction of the reserved share due to the behavior contrary to the rules of social co-existence of the person entitled to a reserved share of the testator. In such situations, only by invoking the principles of social coexistence allows one to satisfy the public's sense of justice, opposed to the award of full debts, and, exceptionally, a reserved share in general to a person on whom there are grounds to consider her unworthy of inheritance or there were grounds for her disinheritance. At the same time, the jurisprudence recognizes that the Court should not substitute for the will of the deceased person and by applying Article 5 of the Civil Code derive from the relationship of the legal heir to the testator applications that would lead to the same effect as if disinheritance had occurred.
As an example in which the application of this provision is possible, one can indicate a situation in which a child entitled to a reserved share did not look after the testator during his lifetime, but was not disinherited by him. Another example is the situation of ill-treatment of the father by his son, not being interested in his illness, absence at the funeral (Supreme Court judgment reference number V CSK 625/15).
Particularly noteworthy is the relationship between authorized holders and heirs. According to the case-law (judgment of the Court of Appeal in Szczecin of 27 March 2019, reference number I ACa 825/18), these relations need to be taken into account, but only as an additional one. Due to this, the difficult financial situation of the heir may be the basis for disregarding a request for a reserved share under Art. 5 of the Civil Code. When for a person included in a will this decline would be the only property, and he does not yet achieve his own income, the holder of the reserved share cannot claim it on the basis of social coexistence. Pursuant to the judgment of the District Court in Toruń (case file No. VIII Ca 78/16), the court may refuse to grant a request for a reserved share due to the principles of social coexistence may take place when a different decision would result in the heir being obliged to pay exceptional reserved shares ailments in the material sphere.
Rejection of inheritance after the deadline
In connection with the frequent taking of loans today, we can face the situation of the so-called unwanted inheritance that includes only debts or exceeds the value of the assets left behind. Often the family of the deceased is not even aware that he left behind debts falling into the estate or does not realize their height.
The statutory and testamentary heir should, within 6 months of becoming aware of the title of his or her appointment to the estate, make a statement whether the estate is accepted or rejected. After 6 months, in the absence of a response from the heir, the inheritance is accepted by law.
The six-month time limit for the heir to be filed cannot be extended. An heir who, under the influence of an error or threat made a defective statement or did not make any statement within this period, may evade legal consequences and make a valid statement effectively - however, this applies only in exceptional cases.
In a decision of the Supreme Court of November 26, 2019, the court considered the situation of two adult children who wanted to reject the inheritance of their deceased father. The decline consisted of debts of 250,000. zł. They did it after the deadline, because they were not aware of the existence of such a high debt - they only knew about part of it. In this case, rejection of an inheritance requires court approval.
It must be proved before the court that it was actually acting under the influence of error or threat. It is not possible to explain yourself by not knowing the law.
In the jurisprudence of the Supreme Court, it is assumed that a legally relevant error as to the subject of the estate may be said when the lack of knowledge about the actual state of the estate is not the result of a lack of diligence on the part of the heir in determining it, when "the error is justified by the circumstances of the case". The assessment in this regard should be made on the basis of the circumstances of the particular case and take into account the average, rather not very high, legal awareness of the public.
The Supreme Court accepted the position of the applicant children. He stated that from the point of view of the decision to accept or reject an inheritance, knowledge of the whole of inheritance debts and their size may be important, and knowledge of only some of them, especially if they are covered by inheritance assets, does not justify the expectation that the heir "prophylactically" will reject the inheritance.
Can the license to sell alcohol be inherited?
This question was answered by the Provincial Administrative Court in Gliwice in a judgment of November 28, 2019 (III SA / Gl 886/19).
Mayor C. granted entrepreneur R. G., who is a sole proprietorship, permission to sell and serve alcoholic beverages. R. G paid to the commune's account the fee due for the whole year of using permits.
Subsequently, R. G. submitted a declaration of resignation from the permission to sell alcoholic beverages and at the same time waived her right to appeal against the organ's decision. The mayor therefore decided to terminate these permits.
R. G. died and her heir claimed a refund of overpaid fees because R.G. paid the fee for the whole year and waived the permit before its expiry.
The court in Gliwice emphasized that there is no doubt that the permission to sell alcoholic beverages is closely related to the entity that received the authorization. Due to this, it is also not subject to inheritance. By the decision issued by the mayor, the granted to R.G. expired. permits cannot be inherited because of this.
In accordance with art. 922 § 2 of the Civil Code, the inheritance does not include the rights and obligations of the deceased closely related to his person, as well as the rights that upon his death pass to designated persons regardless of whether they are heirs. It was undoubtedly for the court that the rights and obligations arising from administrative decisions issued to R. G. authorizing the sale of alcohol were closely related to her person.
The inheritance is the total of the property rights and obligations of the deceased. As a rule, it does not include property rights and obligations of a public law nature, governed by the provisions of legal departments other than civil law, in particular administrative or tax law. The exception confirming the rule is the taxpayer's right to a refund of excess tax. The fees paid by R.G were undoubtedly public-law in nature.
It follows from this judgment that it is not possible to inherit the license to sell alcoholic beverages.
Salary from the legatee.
According to the jurisprudence of the Supreme Court, the heirs are entitled to a claim for remuneration for the legatee's use of an item marked as to the identity, which is the subject of the ordinary record, for the period until the claim for the record is due (resolution of 27 August 2015 - III CZP 46/15). This applies if the subject of the subscription was already in the possession of the legatee before the will was announced. It is only when the will is announced that the legatee may demand that the entry be made (Article 970 of the Civil Code).
It was disputed, however, whether the period for which the legatee has to settle ends when the court dispute is over or when the legatee makes a request to subscribe. The Supreme Court in a decision of 10 July 2019 (reference number V CSK 228/18) confirmed that heirs may demand remuneration from the legatee for using the subject of the subscription, but only until he claims it. The legatee cannot bear the consequences of too long a process of issuing the subject of registration
Rejection of the inheritance does not transfer the right to a reserved share to the child.
The Supreme Court has established that in the event of testamentary inheritance, only specific persons - specific statutory heirs - are entitled to the reserved portion. They cannot "transfer" the reserved portion to their children by making a declaration of rejection. This could, in certain cases, give rise to unjustified privilege of these children over the will. It is known that minors may demand a reserved share of 2/3 of their inheritance share, while their adult parent only 1/2 of the inheritance share.