Inheritance - legal advice

Inheritance law

ATTENTION! automatic translation from Polish

News

September 2024

Droit de suite is not included in the inheritance

The institution of droit de suite is regulated by art. 19 section 1 of the Act of 4 February 1994 on copyright and related rights, according to which the creator and his heirs, in the case of professional resale of original copies of a work of art or photography, are entitled to remuneration.

The essence of this right comes down to granting the author of the work (art, photography, literary and musical manuscripts, art. 191 p.a.p.p.) and his heirs the right to a specific fraction of the price achieved by each subsequent sale of this work in professional trade. It is therefore a separate copyright and legal entitlement of a property nature (judgment of the Court of Appeal in Warsaw of 27 June 2019, reference number V ACa 473/18). The origins of this right can be found in French law, where it was introduced into the legal system in order to secure the financial situation of creators and their heirs. Currently, this right primarily serves to equalize the economic situation of creators of so-called fine arts with other creators who obtain income from each subsequent exploitation of the work (E. Traple, System prawa prywatna. Tom 13. Prawo pracownicy, ed. J. Barty, Warsaw 2017, p. 222).

According to the judgment of the Court of Appeal in Poznań of 12 June 2024 (I AGa 280/22), the institution of droit de suite resulting from art. 19 of the u.p.a.p.p. cannot be included in the author's financial rights in the strict sense. This is a financial author's right included among special (independent, autonomous, sui generis) rights to remuneration.

The right regulated in art. 19 sec. 1 of the u.p.a.p.p. the second sentence of art. 922 § 2 kc refers to, hence this right does not belong to the estate. According to the content of the second sentence, the rights indicated therein, not belonging to the estate, may pass to designated persons who may or may not be heirs. In the case of the right from art. 19 sec. 1 u.a.p.p.p., the persons to whom the creator's right to remuneration passes are defined as his heirs.

August 2024

Costs of preparing an inventory

The possibility of accepting an inheritance with the benefit of inventory, provided for in Polish law (Article 1012 of the Civil Code), creates a convenient way to protect oneself from inheritance debts exceeding the financial capabilities of the heir. It is equivalent to limiting liability to creditors to the value of the acquired inheritance, which is specified in the inventory or inventory list. The list, unlike the list, has the status of an official document, which is why its preparation involves higher costs.

According to Article 637 of the Code of Civil Procedure, the following may apply to the court for a ruling on the preparation of an inventory:

a person who provides plausible evidence that they are an heir, entitled to compulsory share or a legatee,
the executor of the will,
a temporary representative or creditor with written proof of debt against the testator. Alternatively, it is permissible for an authorized entity to submit an application directly to the bailiff, who will then notify the court, and the court will issue an appropriate decision.

Article 40 of the Act of 28 February 2018 on bailiff costs sets the fixed fee for an application to prepare an inventory at PLN 400, while the court fee for an application in the same subject will be PLN 100 (Article 49 section 1 of the Act on court costs in civil cases). Regardless of the above-mentioned fixed fees, it should be taken into account that it will be necessary to incur further expenses related to the costs of the bailiff taking additional actions in the course of determining the composition of the estate and its value. It may be necessary, for example, to appoint experts for the purposes of professional valuation of real estate belonging to the estate. The entity obliged to pay the required fees for submitting applications and for the preparation of the inventory itself is the applicant - in light of the fact that the proceedings for the inventory are conducted in a non-litigious mode, the costs of its initiation and conduct are borne exclusively and in full by the applicant.

Klaudia Kurpeta

July 2024

Personal income tax and succession management of an enterprise

Temporary management of an enterprise after the death of an entrepreneur is associated with the need to fulfill tax obligations imposed on a given enterprise, including personal income tax. The Act on the succession management of an individual's enterprise and other facilities related to business succession states directly in Article 49 that: "A successor enterprise is an organizational unit without legal personality, being a taxpayer" and refers to the provisions defining the taxpayer from several other acts (including: PIT, CIT and VAT, etc.). This means that the taxpayer is the enterprise, not the manager or owners.

At the time of the entrepreneur's death, the successor enterprise takes over the tax rights and obligations of this entrepreneur. Therefore, it is not obliged to submit a PIT declaration for the deceased entrepreneur. For tax purposes, it uses the deceased entrepreneur's NIP. A successor enterprise must keep books either in the form of a tax book of income and expenses or in the form of accounting books. They should enable the determination of income (loss), tax base and the amount of tax due for the tax year, including the reporting period, and should also include in the records of fixed assets and intangible assets and legal rights the information necessary to calculate the amount of depreciation write-offs. On the day the inherited enterprise commences its business activity, a list of assets included in it should be prepared. During the period of business activity conducted by the inherited enterprise, it is also a payer of advance payments for personal income tax, collected from the salaries of employees and contractors. It is subject to obligations regarding the calculation, collection and transfer of advance payments for tax to the appropriate authority. Until the end of the tax year in which the entrepreneur died, the inherited enterprise continues the method of taxation according to the form chosen by the deceased (e.g. tax card). In the next tax year, the inherited enterprise may change the form of PIT taxation chosen by the deceased entrepreneur and choose the form of taxation on the same principles as apply to natural persons. An inherited enterprise may reduce its income by the loss incurred, including the loss that was incurred but not deducted by the deceased entrepreneur. The same applies to expenses incurred for research and development. In the case of tax depreciation, there is a continuation - the successor administrator takes into account the amount of deductions and the depreciation method chosen by the deceased enterprise.

June 2024

Refusing to accept the inheritance due to an error

If the inheritance was accepted due to an error, it can be waived with the consent of the court. However, the Supreme Court in its decision of May 13, 2024 (I CSK 362/23) recalled that in the event of application of Art. 84 CC based on the references contained in Art. 1019 CC It is justified, due to the specificity of accepting an inheritance - both in relation to an error of law and an error of fact - to modify the circumstances that led to the error. The fact that the effects of accepting an inheritance are not limited only to the legal sphere of the heir, but have a strong impact on the legal relations of many other people, argues for making the legal significance of an error dependent on the application of Art. 1019 CC not only that it concerns the content of accepting the inheritance and is significant, but also that it does not result from the heir's failure to exercise due diligence. Therefore, an error regarding the subject of the inheritance can be said to occur when the lack of knowledge about the actual state of the inherited assets is not the result of the heir's lack of diligence, or, to put it another way, it is justified by the circumstances of the case.

May 2024

Requirements for a claim for compulsory share

In accordance with the decision of the Supreme Court of October 28, 2022 (I CSK 2901/22), in matters relating to the maturity date of a claim for compulsory share, the state of delay should be determined individually, taking into account the circumstances of a given case, avoiding any automatism. As a rule, since the provisions on the compulsory share do not regulate the due date of the claim, which does not result from the nature of the obligation, the benefit in this respect should be made immediately after the debtor is requested to perform (Article 455 of the Civil Code) (see, among others, the judgments of the Court Supreme of February 24, 2016, I CSK 67/15, unpublished; June 25, 2015, III CSK 375/14, unpublished; February 7, 2013, II CSK 403/12, unpublished; of September 17, 2010, No. II CSK 178/10, unpublished, and of April 17, 2009, III CSK 298/08, OSNC-ZD 2009 4, item 107).

In some judgments, the Supreme Court assumed that, due to the circumstances of a given case, the state of delay in the implementation of claims under the compulsory share occurred only from the moment of judgment, since the basis of the compulsory share was determined on that date (see, among others, the judgment of the Supreme Court of December 15 1999, I CKN 248/98, unpublished). This position results from the fact that one of the functions of interest due to the creditor for the period of delay in fulfilling the monetary benefit is the indexation of the decline in the purchasing power of money. As a consequence, determining the monetary benefit due to the creditor at the prices on the date of the judgment and, at the same time, awarding interest from the date of delay preceding the date of the judgment may lead to the same mechanism of indexation of the monetary benefit being applied twice in favor of the creditor. This does not mean, however, that in such a situation the creditor is always entitled to statutory interest from the date of the judgment on the compulsory share claim.

The jurisprudence of the Supreme Court noted that due to the stabilization of economic relations and the reduction of statutory interest rates, they increasingly took on a compensatory nature and their indexation function was reduced. In the event of price stabilization or price reduction, awarding interest on a fixed monetary benefit, the amount of which has not increased due to inflation, does not lead to double indexation of the same benefit. The opposite situation will occur if the prices influencing the determination of the amount of this benefit have increased between the time the claim for compulsory share became due and the moment the claim was adjudicated.

For these reasons, it was assumed in the jurisprudence of the Supreme Court that in such cases the level of delay should be determined individually, taking into account the circumstances of a given case, avoiding any automatism (see judgments of the Supreme Court of June 22, 2016, III CSK 279/15, unpubl. ; of February 24, 2016, I

CSK 67/15, unpublished; of June 25, 2015, III CSK 375/14, unpublished, and of February 7, 2013, II CSK 403/12, unpublished).

April 2024

Who can receive a death certificate?

The death certificate is a document necessary to start all inheritance procedures. Pursuant to Article 45(1) of the Law on Civil Status Records, a death certificate of a deceased person may be issued to a spouse (widow, widower), ascendant, descendant, sibling, legal representative, guardian,

In addition, a person who demonstrates a legal interest in it may receive a death certificate.

In addition, a death certificate is issued to a court, a prosecutor, social organizations if it is consistent with their statutory purpose and the public interest warrants it, and public administration bodies, including entities referred to in Art. 5a section 1, the State Protection Service, the Police, the Border Guard and the Prison Service, as well as the Military Police, if necessary for the implementation of their statutory tasks.

In practice, if the heir is a person from outside the deceased's family, he or she must demonstrate a legal interest. In practice, it is possible to convince the Civil Registry Office officials that the legal interest results from a will or a contract concluded with a deceased person.

March 2024

Entry of heirs in the land and mortgage register

The obligations imposed on heirs related to the opening of an inheritance include the obligation to disclose the heirs in the land and mortgage register of a given property. It is not implemented ex lege, but requires the submission of an application. The application is submitted on a form. The application must indicate the name of the Applicant and provide data regarding the property (address, land and mortgage register number). You must also specify the exact content of the desired entry. If the property is co-owned by several heirs after the testator's death, they must consent to the entry in writing. The application must also be accompanied by:

Death certificate of the testator
a document confirming the acquisition of property based on inheritance (e.g. inheritance certificate or final court decision)
proof of payment of the court fee of PLN 150 ((proof of payment, bank statement)

The entire procedure takes from 2 to 6 months. After its completion, a decision on making a new entry will be issued.

February 2024

Selling the deceased's car

When the inheritance is opened, the rights and obligations of the deceased pass to the heirs. The inheritance process itself involves the need to fulfill many obligations regarding the inherited goods of the deceased. Often, many heirs decide to sell some elements of the inherited property. An example may be the deceased's car, which is unnecessary for the heir. Therefore, there is a need to re-register the car after the owner's death. In order to register successfully, the heir must have confirmation of inheritance. Physical evidence will be a court or notarial confirmation of the inheritance. If there are several heirs, the car will belong to several co-owners in fractional parts. It will be necessary to regulate this situation in the form of a contractual division of the inheritance.

After fulfilling the obligations related to inheritance, you should go to the communication department of the county office competent for your place of residence. In addition to the documents normally required for vehicle registration indicated in Art. 72 of the Road Traffic Law, an application for vehicle registration, a document confirming the identity of the inheritor, as well as a vehicle card and registration certificate, if they were previously issued, must be attached. Only after re-registration of the car can the heir freely dispose of it.

It should also be noted that despite the death of the vehicle owner, the third party liability insurance policy purchased by him does not expire. In this situation, any written notice of termination will be possible only after the car has been re-registered. The policy fee is part of the estate's debts and failure to fulfill the obligation to pay it will result in a penalty in the form of payment to the Insurance Guarantee Fund.

It is also worth remembering that the sale of an inherited car within six months from the date of inheritance is considered a source of income. Such income is subject to personal income tax.

January 2024

Refund of funeral costs by the bank

From January 1, 2020, a debt collection provision may also cover all the rights and obligations of a partner in a partnership. Yes, a debt collection legacy (like other debt collection provisions) should be included in a will drawn up in the form of a notarial deed. The subject of the debt collection legacy is acquired at the moment of opening the inheritance.

Inheritance debts include debts incurred at the time of opening the inheritance. These include, in accordance with Art. 922 § 3 of the Civil Code, the costs of the Testator's funeral to the extent that the funeral corresponds to the customs adopted in a given environment. According to most doctrines, the necessary expenses related to the organization of a funeral include expenses for: purchasing a coffin, transporting the body, paying for a plot at the cemetery, organizing a funeral ceremony, purchasing funeral clothes for the deceased, as well as expenses for cremation and wreaths and flowers. A person who incurs funeral costs therefore has recourse claims against other heirs, even if he is not an heir himself. In addition, Art. 55 of the Banking Law, in the event of the death of a bank account holder, the bank is obliged to pay out an amount covering the funeral costs of the account holder. The bank is obliged to reimburse the above costs up to the amount of the account balance. A person who applies to the bank to cover the funeral costs of the account holder must present receipts confirming the expenses incurred by him in connection with the organization of the funeral. If the bills do not contain data enabling the identification of the person who incurred the actual costs, evidence may include, for example, a bank account statement confirming payment for this bill or confirmation of payment by payment card at a funeral home.

However, as in the case of 922 § 3 of the Civil Code, these expenses cannot exceed the costs of organizing a funeral in accordance with the customs adopted in a given environment, and the account from which the costs will be covered cannot be a joint account. The amount paid for funeral costs does not become part of the account holder's estate. The bank can pay out a maximum of the amount of funds in the account, even if the deceased used a revolving loan.

December 2023

All rights and obligations of a partner in a partnership in a debt collection clause

It should also be remembered that the effectiveness of such a debt collection provision is influenced by the content of the partnership agreement and the will of the partners

The possibility of a debt collection legatee joining a partnership will therefore be influenced primarily by the content of the partnership agreement and the will of the partners. Pursuant to Art. 10 of the Commercial Companies Code, all rights and obligations of a partner in a partnership may be transferred to another person only if the partnership agreement so provides and only after obtaining the written consent of all other partners, unless the partnership agreement provides otherwise. However, in accordance with Art. 64 of the Commercial Companies Code, despite the death or declaration of bankruptcy of a partner and despite the termination of the partnership agreement by the partner or his creditor, the partnership continues between the remaining partners if the partnership agreement so provides or the remaining partners so decide. Such an agreement should be made immediately in the event of death or declaration of bankruptcy, and in the event of termination - before the expiry of the notice period. Otherwise, the heir, trustee or partner who terminated the partnership agreement, as well as his creditor, may demand liquidation.

November 2023

Changes in inheritance law from July 2023

On November 15, 2023, the provisions adopted in July this year introducing important changes to the rules of inheritance will enter into force. They included the Civil Code as well as the Code of Civil Procedure. The legislator justified these changes with the desire to increase the efficiency of inheritance proceedings. These amendments can be divided into three areas.

I. Change in the provisions regarding consent to reject inheritance on behalf of a minor.

According to the current regulations, in order to reject an inheritance on behalf of a minor, parents needed to obtain the prior consent of the guardianship court. Such a regulation, although it significantly protected the minor's property interests, led to an increase in the number of cases pending before guardianship courts.

A huge opportunity for improvement is the introduction of the possibility of applying for such a permit before the inheritance court, instead of before the guardianship court. Thanks to this, it will no longer be necessary to initiate separate proceedings to obtain consent, because such consent will be granted by the inheritance court (Article 6401 of the Code of Civil Procedure added).

The key change is to allow parents to reject the inheritance on behalf of a minor without the need to obtain the court's consent, in the event that the child was appointed to the inheritance due to the parents' previous rejection of the inheritance. For this right to be valid, the action must be performed jointly by both parents, or by one parent with the consent of the other. (Art. 101 §4 KRO)

II. Extension of the grounds for declaring someone unworthy of inheritance.

The legislator, in addition to the previously sent recognition of unworthy of inheritance, i.e. situations where the heir:

he intentionally committed a serious crime against the testator;
by deception or threat, induced the testator to prepare or revoke a will or in the same way prevented him from performing one of these acts;
intentionally concealed or destroyed the testator's will, forged or forged his will, or knowingly used a forged or forged will of another person

adds further new premises:

persistently evaded the performance of the maintenance obligation towards the testator specified in the amount specified in a court decision, a settlement concluded before a court or other authority or another agreement;
persistently evaded the obligation to take care of the testator, in particular resulting from parental authority, care, acting as a foster parent, the marital obligation of mutual assistance or the obligation of mutual respect and support of the parent and the child.

III. Limitation of the circle of inheritors

In the absence of descendants, spouse, parents, siblings and descendants of siblings, according to Polish law, the testator's grandparents inherit.

The legislator limits the circle of heirs in the event of the death of one of the grandparents. After the death of one of the grandparents, his allocation will only be available to his children and grandchildren (and not to all his descendants, as before). In the absence of children and grandchildren, his share will fall in equal parts to the other grandparents.

October 2023

UNWORTHINESS OF INHERITANCE - AMENDMENT OF JULY 28, 2023

On November 15, 2023, the Act of July 28, 2023 amending the Civil Code and certain other acts will enter into force. The proposed changes include an amendment to the institution of unworthiness of inheritance. The Polish legislator adopted a structure according to which the effects of unworthiness of inheritance do not occur ex lege, but by virtue of a constitutive court judgment, producing ex tunc effects. The discussed institution is based on ethical considerations - a person who engages in negative behavior towards the testator or seeks to have a negative impact on the order of inheritance should not benefit from the inheritance. Recognizing the need to extend the grounds for unworthiness of inheritance to Art. 928§1 introduced two new grounds based on which an heir may be deemed unworthy.

The new point 4 concerns the situation when the potential testator, during the testator's lifetime, "persistently evaded the performance of the maintenance obligation towards him specified in the amount by a court decision, a settlement concluded before a court or other body or another agreement." Limiting the proposed premise to cases where the obligation was determined in terms of amount was due to the importance of the consequences of recognizing the heir as unworthy of inheritance. Point 5 considers the circumstances justifying a finding of unworthiness to be "persistent evasion of the obligation to care for the testator, in particular resulting from parental authority, care, acting as a foster parent, the marital obligation of mutual assistance or the obligation of mutual respect and support of the parent and the child."

The justification for the bill emphasized that the state should respond to unethical behavior of heirs. There cannot be consent to violating particularly valuable personal rights of the testator, such as life, health or dignity. The above-mentioned values have a constitutional status, therefore any actions against them by a person included in the circle of persons entitled to the inheritance must be sanctioned. In this case, the idea is to deprive those who act unethically of the opportunity to obtain any financial benefit from the inheritance. As indicated by the legislator, the changes introduced are a response to the facts that deprive the testator of the opportunity to independently decide on exclusion from inheritance in the will. These included, among others, the lack of capacity to testify under Article 944 of the Civil Code, or the inability to prepare a will due to factual reasons - e.g. when the testator is in a vegetative state. Moreover, what deserves special attention, disinheritance is possible only in relation to a strictly defined group of people. However, those who cannot be disinherited by the testator, even though they may be potential heirs, may also avoid fulfilling the obligation of alimony or custody. Such people include, for example, siblings.

In the author's opinion, the proposed solutions are intended to make it possible to demand that those heirs be deemed unworthy of inheritance who, under the current legal situation, could evade their obligations of assistance with impunity, despite the real possibility of fulfilling them.

September 2023

Family foundation and its impact on inheritance law

There are nearly 830,000 family businesses in Poland, generating revenues worth PLN 322 billion a year. The legislator, noticing the difficulties in planning their succession, decided to introduce into our legal system instruments ensuring protection against fragmentation of assets arising in connection with business activity. On May 22, 2023, the Act of January 26, 2023 on family foundations entered into force. The justification for the legal act states that the aim is to avoid "the world-famous scenario in which children divide their parents' property, and then their descendants divide the property into smaller and smaller parts and only implement their own plans." The legislator considered the existing solutions - such as investment funds collecting family assets or the so-called family constitutions - to be insufficient. The use of a family foundation structure is intended to prevent the so-called "emigration of assets", i.e. a situation in which Polish entrepreneurs decide to transfer their assets to foreign foundations or trusts, through comprehensive strengthening of legal tools allowing "to retain capital in the country for many generations and increase the potential of domestic investments."

A family foundation - an entity with assets that are not divided into shares - is intended to ensure the continuity of a private enterprise, in particular for the purposes of securing the family. It has economic powers such as selling property, participating in companies and granting loans. It supports beneficiaries financially, educationally and organizationally. As a rule, the beneficiaries of such a foundation are to be family members, but this is not a condition, as the basic idea is to continue the business activity. The task of the new institution is to implement the objectives set by the founder - it can only be a natural person with full legal capacity - based on the transferred assets. A family foundation is to provide specific benefits to specified beneficiaries, which may include: a natural person, a non-governmental organization conducting public benefit activities or the founder of the family foundation.

In the current legal situation, the family foundation has a significant impact on the shape of inheritance law, primarily in the field of the institution of legitime. The most important changes are as follows. The catalog of sources of satisfying the compulsory share has been supplemented - it includes benefits from the family foundation and property in connection with the dissolution of the family foundation, transferred to the person entitled to the compulsory share (Article 992 § 2 of the Civil Code). The obligation to include the founding fund of the family foundation contributed by the testator and property in connection with the dissolution of the family foundation was added to the inheritance when calculating the statutory share. The assets of the family foundation taken into account when calculating the statutory share should come exclusively from the testator. Similarly as in the case of donations - when calculating the statutory share, the founding fund of a family foundation and property in connection with the dissolution of the family foundation are not taken into account if the contribution or dissolution took place more than ten years ago, counting back from the opening of the inheritance or - in certain situations - at a time when the testator had no descendants. The value of the founding fund of a family foundation and property in connection with the dissolution of the family foundation is calculated according to the state at the time of their transfer, and according to the prices at the time of determining the compulsory share. If the family foundation is an heir, a debt collection legatee or a beneficiary of the testator, it will be liable for the compulsory share in this respect under the existing rules. Benefits received from the family foundation by the entitled person reduce the value of the compulsory share, while the compulsory share received reduces the value of future benefits due to the beneficiary from the family foundation. The foundation may be liable for the payment of the compulsory share - as an heir if it receives an inheritance from the founder or another person, and as a beneficiary - if it receives a donation from the founder or another person.

August 2023

Spreading the reserved share into installments Art. 997 ¹ of the Civil Code

An inheritance can increase both assets and contribute to increasing liabilities. Often, the obligations resulting from the inheritance contributed to the deterioration of the financial situation of the heirs. Therefore, it was necessary to introduce some flexibility in the relations between the heirs and those entitled to the reserved share. Therefore, the legislator introduced changes to the Civil Code in the Family Foundation Act by adding Art. 997 ¹, providing for the possibility of, among other things, spreading the legitim into installments.

The first paragraph of the new provision was given the following wording: "The person obliged to satisfy the claim for the reserved share may demand a postponement of its payment deadline, spreading it into installments, and in exceptional cases - its reduction, taking into account the personal and financial situation of the person entitled to the reserved share and the person obliged to satisfy the claim from the title of the reserved share."

The quoted provision allows for greater flexibility of the heir, who until now did not have the right, resulting directly from the provisions of the Civil Code, to spread the repayment of the legitim towards the entitled person in installments. When spreading the reserved portion into installments, the general regulation of Art. 320 of the Code of Civil Procedure, providing for the possibility of spreading the benefit into installments in particularly justified cases. Jurisprudence and doctrine treated this premise quite restrictively, narrowing it down to fortuitous events or natural disasters. The premise described in the above provision is less restrictive than the one in Art. 320 of the Code of Civil Procedure. It is worth noting that the provision in question is not revolutionary, but it is a continuation of the existing jurisprudence in inheritance cases as well as the position of the doctrine developed over the years on the above subject.

The second paragraph of the new provision specifies the period for which the claim for the reserved share may be divided into installments and special cases in which the repayment date may be postponed once and the deadline extended: "In the case of spreading the claim for the reserved share into installments, the dates for their payment may not exceed a total of five years. In cases deserving special consideration, the Court, at the request of the principal, may postpone the payment of installments already due or extend the period referred to in the first sentence. The revised term may not be longer than ten years."

July 2023

Renunciation of inheritance - changes in regulations

The Act of January 26 on a family foundation, which entered into force on May 22, 2023, in addition to introducing a new institution of law into the Polish legal system - a family foundation, also made changes to the institution of renunciation of inheritance under Art. 1048 CC The article has been modified by adding two paragraphs:

§ 2. Waiver of inheritance may be limited to waiving only the right to a reserved share in whole or in part.

§ 3. Waiver of inheritance in favor of another person shall be deemed to be a waiver in case of doubt, provided that that person will inherit."

However, the current article has been left in its current wording and marked as the first paragraph:

"§ 1. The statutory heir may, by agreement with the future testator, renounce his inheritance. Such an agreement should be concluded in the form of a notarial deed.

The second paragraph allows for the possibility of limiting the waiver to the right of reserved share in whole or in part, which means confirmation of the current position of the doctrine and jurisprudence (cf. Ciszewski Jerzy (ed.), Nazaruk Piotr (ed.), Civil Code, Wolters Kluwers 2023).

In the third paragraph, the possibility of renouncing inheritance is allowed, provided that it is in favor of another person. Such a reservation does not result in direct inheritance, but depends on whether certain persons actually succeed to the inheritance. The current wording of the article is also confirmed by the current position of the doctrine and jurisprudence. (cf. Fras Mariusz (ed.), Habdas Magdalena (ed.), Civil Code. Commentary. Volume VI. Inheritance (art. 922-1087), WKP 2019)

June 2023

Can a certificate of inheritance indicate a deceased person as an heir?

Pursuant to the provisions of the inheritance law, there are two paths to obtaining the right to dispose of the inheritance: by judicial confirmation of the acquisition of the inheritance or by drawing up an act of inheritance certification by a notary public. However, what about the common situation where one of the heirs dies before the acquisition of the inheritance of the first deceased is established? Will the notary refuse to draw up the deed?

Pursuant to Art. 79 point 1a in connection with art. 95 b of the Notarial Act, before drawing up the deed, the notary public writes down the inheritance protocol in the presence of all interested persons. The absence of these persons, in accordance with the content of Article 95e §2 point 2, results in the refusal to draw up the inheritance certification act.

The Supreme Court commented on this issue in resolution III CZP 89/09 of November 17, 2009, which was the answer to the question posed by the court of first instance before which the proceedings concerning the refusal to draw up the inheritance certificate by a notary public were pending. According to the interpretation of the Supreme Court, the provisions on inheritance certification acts are intended to simplify the inheritance acquisition procedure. In the opinion of the Supreme Court, allowing a deceased person to be indicated in the inheritance certificate is an element that simplifies the procedure.

According to the judges of the Supreme Court, the interests of the deceased person are secured thanks to the presence of further statutory and testamentary heirs, as well as persons potentially able to take over the inheritance. Therefore, the concept of a deceased person does not mean an absent person within the meaning of the provisions of the Notarial Act. In view of the above, it should be considered that there are no obstacles to indicating the deceased person as the heir in the property certificate. The share of the deceased person will be subject to further inheritance in accordance with the rules of the Civil Code.

May 2023

Definition of the right to a reserved share

It happens that court rulings include definitions of legal concepts. They then allow for unifying the understanding of legal norms and, consequently, limiting discrepancies in jurisprudence.

In the judgment of 20 December 2018, the Court of Appeal in Warsaw (VI ACa 1108/17) decided, on the one hand, to define the right to a reserved share, and on the other, indicated the possibility of having the right to a reserved share with the simultaneous lack of a claim for payment of the amount of the reserved share.

The justification for the judgment reads: "In the literature on the subject, it is pointed out that the right to a reserved share is something else than a claim for payment of the amount of money needed to cover or supplement the reserved share. Various rights flow from the right to a reserved share. A claim for payment of the amount of money needed to cover or supplement the reserved share is one of these rights, but not the only one. The right to a reserved share is also manifested in the limitation of liability for certain debts (Articles 998, 999 of the Civil Code) and the change in the nature of the ordinary legacy (Article 998 § 2 of the Civil Code), as well as, indirectly, in the priority of satisfying the entitled party over the ordinary legatee. Therefore, the right to a reserved share is not exhausted in the claim for a reserved share and cannot be equated with it. This right is exercised after the death of the testator in the powers of persons close to the testator listed in art. 991 § 1 k.c. in relation to heirs, debt collection legatees and endowed legatees, but also partly ordinary legatees and beneficiaries of instructions and other persons entitled to a reserved share

According to Art. 991 § 2 of the Civil Code, if the beneficiary has not received the reserved share due to him, either in the form of a donation made by the testator, or in the form of an inheritance appointment, or in the form of a legacy, he is entitled to a claim against the heir for the payment of a sum of money needed to cover the reserved share or to supplement it. However, if the entitled person is appointed to inherit, his right to a reserved portion is exercised in a completely different way, e.g. by limiting liability for certain debts (Articles 998, 999 of the Civil Code). If the person entitled to the reserved share is an ordinary legatee, his right to the reserved share is manifested, among others, in the following: in that an ordinary legacy in his favor is treated as unconditional and unlimited in time up to the amount of the reserved share (Article 998 § 2 of the Civil Code).

As a consequence, in the opinion of the Court of Appeal, it follows from these provisions that one may be entitled to a reserved share and not have a claim for payment of a sum of money in respect of the reserved share or to supplement the reserved share)."

April 2023

Inheritance department and entry in the land and mortgage register

a notarial deed of inheritance certification or a court confirmation of inheritance acquisition will not always be sufficient to take over the ownership of given assets - in a situation where there are several heirs, in accordance with Art. 1035 CC the provisions on co-ownership in fractional parts apply accordingly, which significantly hinders the use and disposal of property. In such circumstances, it will be necessary to conduct a division of the estate. The subject of these proceedings is the division of inheritance property among all heirs, together with possible repayments and additional payments.

The division of inheritance can take place in a judicial and contractual manner, of which the latter is naturally faster and saves many formalities. It requires an agreement between all heirs as to the division of the inheritance; in some cases (e.g. real estate) it is necessary to maintain the form of a notarial deed.

After the division of the inheritance, if there was real estate in the estate, it is also necessary to submit an application for entry in the land and mortgage register. Neither the court nor the notary public will do it for us, and they are only obliged to notify the court competent to keep the land and mortgage register, which will only result in the entry of a warning about the inconsistency of the actual legal status with that disclosed in the land and mortgage register. You should take care of the proper entry yourself by submitting an appropriate application together with a final decision on the division of the inheritance.

The application is submitted to the competent district court on a special KW-WPIS form together with a fee of PLN 150, in accordance with Art. 42 sec. 3 of the Act on Court Costs in Civil Matters ("Application for entry in the land and mortgage register of ownership, perpetual usufruct or cooperative ownership right to premises on the basis of inheritance, legacy or division of inheritance or dissolution of co-ownership is charged with one fixed fee of PLN 150, regardless of the number shares in these rights").

March 2023

Inheritance department and liability for debts.

According to Art. 1034. § 2 of the Civil Code, from the moment of division of the inheritance, the heirs are liable for the inheritance debts in relation to the size of the shares. However, pursuant to Art. 10342 of the Civil Code, from the moment of division of the inheritance, the heirs and persons for whom the debt collection records were made are liable for the inheritance debts in proportion to the value of the benefits received by them.

It might therefore seem that the division of inheritance means that the liability for inheritance debts is limited only to the value of the inheritance property received as a result of the division of inheritance. Therefore, if someone did not receive anything as a result of inheritance division, he will not be responsible for inheritance debts at all. However, this is only the case for persons who have received debt collection records. The heirs, on the other hand, are always liable for the inheritance debts in relation to the size of the shares established in the confirmation of the acquisition of the inheritance. This means that even if someone did not receive anything as a result of the inheritance division, he is still responsible for the debts in the part corresponding to his inheritance share. Therefore, the inheritance department does not release you from liability for the inheritance debt. Such a view is based on the doctrine - J. Ciszewski, J. Knabe [in:] Code of Civil. Updated commentary, edited by P. Nazaruk, LEX/el. 2023, art. 1034(2). https://sip.lex.pl/#/commentary/587858982/715222/ciszewski-jerzy-red-nazaruk-piotr-red-kodeks-cywilny-komentarz-aktualizator?cm=URELATIONS (access: 2023-02-18 17 :04)

February 2023

Appropriate application of the rules on co-ownership to the joint ownership of inheritance property and to the division of inheritance

According to Art. 1035 of the Civil Code (Act of 23 April 1964. Civil Code, Journal of Laws of 2022, item 1360, hereinafter referred to as: "CC"), if the inheritance falls to several heirs, the co-ownership of the inheritance property and the division of inheritance are governed by the provisions on co-ownership in fractional parts, respectively.

In order to explain exactly what the "proper" application of the provisions on co-ownership means, it is first necessary to indicate what the legal situation of the heirs is before the division of the estate. Before the inheritance is divided, the inherited property is jointly owned by all co-heirs. Each of them may dispose of his share with the consent of the other co-heirs. After the division of the inheritance, the co-ownership of the inheritance property of all heirs ceases to exist. From the moment of division of the inheritance, each of the heirs may independently manage the part of the inheritance due to him - so the provisions on co-ownership do not apply.

Appropriate application of the provisions on joint ownership to the legal situation of co-heirs before the division of inheritance consists in applying the provisions on joint ownership (Article 196 of the Civil Code and the following), but only to the extent that they are not in conflict with the specific features of the joint ownership of the estate, and also when the provisions on the joint inheritance property and the division of inheritance (Article 1035 of the Civil Code and the following) do not provide otherwise (E. Skowrońska-Bocian, J. Wierciński [in:] Code of Civil. Commentary. Volume VI. Spadki, ed. II, ed. J. Gudowski, Warsaw 2017, article 1035).

Which co-ownership laws do we apply and which do we not?

Prior to the division of the inheritance, each of the heirs has the right to co-own the items belonging to the inheritance (Article 206 of the Civil Code). Each of the heirs has the right and obligation to cooperate in the management of the common thing (unless a trustee has been appointed or a temporary administration has been established; Art. 200). Each of the heirs receives the benefits and other income from the inheritance property in relation to the share of the inheritance to which he is entitled, and incurs expenses and burdens in this proportion (Article 207 of the Civil Code). To perform activities exceeding the scope of ordinary management, the consent of all co-heirs is required, and in the absence of such consent, co-heirs whose shares are at least half may request a decision by the court, which will adjudicate taking into account the purpose of the intended activity and the interests of all co-owners (Article 199 of the Civil Code ). Each of the co-owners may perform any activities and pursue any claims that aim at preserving the joint right.

Not applicable:

article 197 of the Civil Code, because it speaks of the presumption of equality of shares of co-owners, and yet the shares of co-heirs depend on the share in the inheritance;
article 198 of the Civil Code, because Art. 1036 of the Civil Code directly states that each of the co-heirs may dispose of his share only with the consent of the other co-heirs;
the provisions of art. 210-222 of the Civil Code, because they deal with the abolition of joint ownership, and in the case of co-heirs, this is regulated by the provisions on the division of inheritance.

January 2023

Real Estate "Statement".

The last notarial deed in the course of inheritance proceedings conducted by a notary public is the "Declaration", the purpose of which is for the heirs to submit information on whether the deceased was the owner of the land, building or premises for which the land and mortgage register is kept. Providing this information is important because the persons who acquired the inheritance in the relevant part should be listed in section II of the land and mortgage register of a given real estate as its owners in the appropriate size. Therefore, it is necessary to know the land and mortgage register number so that the notary public, apart from preparing a short (usually two-page) notarial deed confirming the testator's possession of specific real estate for which land and mortgage registers are kept, can then draw up an adequate application to the competent Land and Mortgage Register Court informing about the change of ownership of a given real estate. If the deceased person did not have any real estate for which land and mortgage registers would be established, then such a deed is prepared and read out in the presence of all heirs after prior registration of the Inheritance Certification Act in the Inheritance Register. The net remuneration of a notary public, as in the case of most deeds from inheritance proceedings, is PLN 50.

December 2022

"Deed of Inheritance Certification"

The "inheritance certification deed", or APD for short, is in fact the most important notarial deed in the entire inheritance proceedings, and its registration is done by the notary in the Inheritance Register. In its content, it contains a precise explanation of the share in which each of the heirs listed inherits the inheritance. It is therefore a formal confirmation of the right to inheritance. An interesting fact is that the possibility of drawing up an act of inheritance certification has been in operation since 2009. Previously, it was only possible to obtain the right to acquire an inheritance by virtue of a court decision. The deed of inheritance certification currently drawn up by a notary constitutes proof that the person indicated in this document is the heir. A fee of PLN 50 should be paid for its preparation - if the APD concerns statutory or testamentary inheritance, a supplementary act of inheritance certification for heirs inheriting a farm. In the case of a testamentary inheritance certificate with a debt collection record, the maximum rate is PLN 100. 23% VAT must always be added to the notary's remuneration. The amount will increase by the number of extracts downloaded. As a rule, such an act has two sides. However, it should be remembered that the notary always sends one APD copy to the staroste and one to the head of the tax office.

However, the legislator excluded the possibility of notarial confirmation of the right to inheritance in the case of special wills. Such wills are: an oral will, a traveling will and a military will. In relation to this category of wills, evidentiary proceedings are usually conducted, during which it is usually necessary to question the witnesses of the will and assess the credibility of their testimonies, which goes far beyond the competence of the notary public. So the only way left is to go to court.

November 2022

Inheritance Protocol

In the inheritance proceedings, before the deed of succession certification is drawn up, the notary draws up a succession protocol with the participation of all interested persons. Important information is included in the inheritance protocol, i.e .:

consistent request for confirmation of inheritance submitted by persons taking part in drawing up the protocol;
statements about the existence or non-existence of persons which would exclude known heirs from inheritance or would inherit with them;
declarations about known wills of the testator or the absence of such wills;
a declaration whether the estate includes a farm and which of the heirs appointed to the estate according to the law meets the conditions for inheriting a farm;
declarations whether declarations of acceptance or rejection of the inheritance or recovery legacy were made, whether a decision was issued concerning the unworthiness of the heir or the person for whom the legacy was made, and whether agreements were concluded with the future testator regarding the waiver of inheritance after him;
a statement as to whether the inheritance includes an enterprise under succession management.

There is a risk of criminal liability for submitting false statements, which the notary is obliged to inform each time about.

Documents that are needed by a notary public to prepare an inheritance protocol include: a copy of the testator's death certificate, copies of civil status records of persons appointed to the inheritance under the law, a certificate of the PESEL number of the deceased.

The notary's remuneration for drawing up the inheritance protocol is PLN 100, so together with the 23% VAT charged, the cost of such a notarial deed is PLN 123. The amount, as always, will increase depending on the number of extracts taken.

October 2022

Declaration of acceptance of inheritance

If 6 months have not elapsed from the date on which the heir learned about the title of his appointment (i.e. the day on which he learned about the death of the relative, after which he inherits the inheritance), in inheritance proceedings conducted by a notary public with a notarial deed preceding the "Protocol of Inheritance" will always be "Declaration of acceptance of inheritance" submitted by all heirs. The 6-month period is important because it gives you the option to decline the inheritance. After this deadline, the heir under the law accepts the inheritance, so the option of rejection expires. In a situation where some heirs reject the inheritance and the remaining inheritance accepts the inheritance, it is possible to include both declarations of rejection of the inheritance and declarations of acceptance of the inheritance in one notarial deed. The determining condition is the simultaneous appearance of all heirs at the notary's office on the day of the inheritance proceedings. Pursuant to Art. 1012 of the Civil Code, apart from the rejection of the inheritance, the heir may either accept the inheritance without limitation of liability for debts (simple acceptance), or accept the inheritance with the limitation of this liability (acceptance with the benefit of inventory). The cost of the notarial deed "Declaration of acceptance of inheritance" or "Declaration of rejection of inheritance" is PLN 50 + 23% VAT. When declaring the inheritance rejection, the notary sends a copy of the death certificate together with the copy to the Probate Court, which means that the death certificate of the deceased will not be returned to the heir.

September 2022

Protocol of opening and announcing the will

The "protocol of opening and announcing a will" may constitute a notarial deed, which is a result of an independent, separate act performed at the notary's office, or it may be a part that initiates notarial inheritance proceedings preceding the "Declaration of acceptance of inheritance". In order for a notary to open and announce a will to those interested in doing so, he must first be presented with proof of the testator's death, which is undoubtedly a copy of the death certificate. Pursuant to Art. 646 of the Code of Civil Procedure, a person who has a will, when it learns about the death of the testator, is obliged to submit it to the inheritance court or to a notary public. Therefore, the necessary documents to be presented to the notary public are the will and the death certificate (or for the record as a stand-alone act, it is possible to present a legally valid decision on declaring the person dead or confirming death). According to Art. 649 §2 of the Code of Civil Procedure "The interested persons are not informed about the date of opening and announcement, however, they may be present at this activity", while at the same time, pursuant to Art. 652 of the Code of Civil Procedure, the notary notaries shall, if possible, notify the persons affected by the testamentary dispositions as well as the executor, the temporary representative and the curator of the estate about the opening and announcement of a will. In addition, the notary is required to immediately notify the inheritance court of the transaction by sending a copy of the prepared report. The very symbolic opening of a will is a technical act. The most important is the content of the protocol, which should contain not only the basics, i.e. a description of the external condition of the will and the date of the will, but most of all the "interior of the will", i.e. the most important testamentary dispositions. A notary may open the announcement of ordinary wills, i.e. handwritten, notarized and allographic, as well as special wills, i.e. oral, travel and military wills, but the specific ones must be previously confirmed in writing so that they can be opened and announced by a notary public. If several wills of the same testator were submitted, all wills are opened and announced, and on each of them an appropriate mention is made of the others (Art. 650 of the Civil Code). Pursuant to the Ordinance of the Minister of Justice on the maximum rates of the notary's fee for the preparation of the opening protocol and the announcement of a will, the maximum rate is PLN 50. It should be remembered that this is a net price, so 23% VAT should be added to it, which is a total gross amount of PLN 61.50. The original of the notarial deed always stays in the notary's office, so the client downloads an extract - the cost always depends on the number of pages - for one page it is (gross) PLN 7.38. As a rule, the said protocol is no more than a few pages long.

August 2022

Declaration of acceptance of inheritance.

Pursuant to the regulation of art. 1012 of the Act of April 23, 1964 - Civil Code (i.e. ), accept the inheritance with the limitation of this liability (the so-called acceptance with the benefit of inventory) or reject the inheritance.

At the time of choosing one of the above options, the heir is also obliged to submit an appropriate declaration, the date and form of which are the subject of regulations of the Civil Code. The declaration of acceptance or rejection of inheritance may be submitted within six months from the date on which the heir found out about the title of his appointment (Article 1015 paragraph 1 of the Civil Code). At the same time, the legislator adopts a legal presumption, according to which failure to submit a declaration within the prescribed period results in the assumption that the heir accepts the inheritance with the benefit of inventory. However, it should be noted that the jurisprudence somehow modifies the literal wording of the above norm by way of interpretation, recognizing that in special situations the court may assess the expiry of the limitation period differently, guided by the principles of social coexistence (Resolution of the Supreme Court of March 15, 2018, III CZP 110/17, OSNC 2019, No. 2, item 18).

As for the form and method of making the heir's declaration, it should be mentioned here that the declaration of acceptance or rejection of the inheritance is submitted to the court or to a notary public. They can be submitted orally or in writing with an officially certified signature. The heir may also authorize a third party to perform a legal action in the form of submitting the above declaration. Such a power of attorney should be pursuant to Art. 1018 par. 3 of the Civil Code in writing with an officially certified signature. The legislator, in the context of the manner of submitting the declaration by the heir, also makes additional reservations, stating that such a declaration is permanent, therefore it may not be revoked, and, moreover, if it is concluded or within the time limit, it is void.

The only method provided for by the legislator to avoid the consequences of failure to submit a declaration in time is regulated in Art. 1019 par. 2 of the Civil Code the possibility of avoiding the consequences of failure to submit a statement as a result of an error or threat. Also, the declaration made in such conditions is treated through the prism of the regulation on defects in declarations of will, with the reservation that the evasion of the legal effects of the declaration should be made in court and the heir should also declare whether and how the inheritance accepts or rejects it.

It is also worth referring to the issue of the transmission of the obligation to submit a declaration of acceptance or rejection of inheritance. Pursuant to Art. 1017 of the Civil Code because if, before the expiry of the deadline for submitting the declaration of acceptance or rejection of the inheritance, the heir has died without submitting such a declaration, the declaration of acceptance or rejection of the inheritance may be submitted by his heirs. The deadline for submitting this declaration may not end sooner than the deadline for submitting a declaration regarding the estate of the deceased heir.

July 2022

What is the inability to work with a reserved share and what does it mean - quotes from judgments and comments

A reserved share is the basic institution of inheritance law, aimed at protecting the closest family members of the testator by guaranteeing the right to a specific part of the estate of the deceased. The reserved share does not limit the freedom of testing, as the testator still enjoys full freedom to dispose of his property. This institution relies on mechanisms only correcting the will of the testator, preventing harmful disposition of property in the event of death.

A claim for a reserved share is pecuniary and in accordance with Art. 991 of the Civil Code is entitled to: the spouse, descendants and parents of the testator. As a rule, the eligible persons are entitled to a reserved share in the amount of half of the inheritance share that would accrue to them in the case of statutory inheritance (J. Ciszewski, J. Knabe [in:] Civil Code. Updated comment, ed. P. Nazaruk, LEX / el. 2022, Art. 991.). It is calculated by multiplying the inheritance share due to the entitled holder by the fraction representing the amount of the reserved share for a given category of persons. At this point, one should note the privileges of minors and persons permanently incapable of work introduced by the legislator. In their case, the reserved portion is 2/3. Undoubtedly, humanitarian reasons and the need to provide special protection to those who, in certain life situations, are deprived of the possibility of earning income, speak for such a distinction.

The concept of a minor does not raise any major doubts, is objective in nature and should be understood in accordance with general principles, which means that a minor is a person who, on the day of opening the inheritance, is under 18 years of age or who has not acquired the status of an adult by contracting a marriage.

Permanent incapacity for work is not a concept defined by the Civil Code. However, it should be assumed that this is a state in which the entitled to a reserved share does not have the capacity to perform any work. The fact of permanent incapacity to work is assessed in a specific case, each time and individually, by the court adjudicating on a reserved share, which should take into account, first of all, provisions in the field of social security (M. Załucki [in:] Civil Code. Comment. Volume VI. Inheritance (art. 922-1087), ed. M. Fras, M. Habdas, Warsaw 2019, art. 991.). These are not the only criteria. According to the judgment of the Court of Appeal in Gdańsk of November 7, 2019, "the court should also consider the degree of disability of the body and the possibility of restoring its full fitness, the possibility of taking up another job or the age of the entitled person" (Judgment of SA in Gdańsk of November 7, 2019, V ACa 229/19, LEX No. 2923427.). Although it cannot be considered that a person with the status of a retired person automatically becomes entitled to a reserved share in a higher amount, however, as indicated by the Court of Appeal in Warsaw in its judgment of 2 December 2016, in the case No. VI ACa 1401/15 "the advanced age of the entitled person, entitling him to take advantage of social security benefits, creates a strong presumption of actual permanent incapacity of that person for work" (Judgment SA in Warsaw of 2 December 2016, VI ACa 1401/15, LEX No. 2191533.). Finally, it should be emphasized that the state of permanent incapacity for work must exist at the moment of opening the estate.

To summarize, we can cite the thesis of the judgment of the Court of Appeal in Poznań, according to which "due to the inability to establish the concept of" permanent incapacity for work "solely on the basis of a linguistic interpretation, reference should be made to the functional interpretation (...)". Moreover, as indicated in the same judgment, in order to facilitate this type of interpretation, it is worth using the provisions of the Regulation of 12 December 1990 on the conditions of inheritance of farms issued pursuant to Art. 1064 of the Civil Code Although this provision has lost its force, "§3 sec. 1 point 2 of the ordinance indicated that the heirs of a farm are considered to be permanently incapable of work if they have reached the age of - women 60 and men 65, and do not perform permanent work which would constitute their main source of income or were included in the 1st or Group II of the disabled in the manner and on the terms specified in the provisions on universal retirement provision for employees and their families. " (Judgment of the SA in Poznań of June 30, 2015, I ACa 321/14, LEX No. 2144721.)

June 2022

Executor

The role of the executor of the will is therefore the execution of specific regulations of the will that are an expression of the will of the testator. The role of the executor cannot be to search for or acquire new rights that were not available to the testator at the time of death and which the testator could not dispose of in his will for obvious reasons, and thus could not designate the scope of the executor's obligations in this way. I OSK 2478/18, Obligations of the executor of a will. - Judgment of the Supreme Administrative Court of June 26, 2019. In a case for issuing an executor's certificate (Civil Procedure Code Art.665), the court examines the existence of a will and its validity in terms of form. III CZP 34/12 - Resolution of the Supreme Court of 18 July 2012. Establishing an executor of a will is possible only in a will (Art. 986 § 1 of the Civil Code). I CSK 62/10 - Decision of the Supreme Court of 11 August 2010.

May 2022

Can a foreign divorce judgment be recognized if there is no fault found?

When courts recognize foreign judgments contrary to the fundamental principles of the legal order of the Republic of Poland or in cases involving res judicata

As a rule, the court may not recognize a foreign judgment if it is inconsistent with a previously issued, final and binding judgment of a Polish court or a previously issued, final and binding judgment of a foreign court, meeting the conditions for its recognition in the Republic of Poland, in a case concerning the same claim between the same parties. Moreover, a foreign judgment cannot be recognized if its recognition would be contrary to the fundamental principles of the legal order of the Republic of Poland (public order clause) - Art. 1146 § 1 point 6 and 7 of the Code of Civil Procedure

These provisions do not apply if the decision of a foreign court states, in accordance with the provisions of that state on national jurisdiction, the acquisition by a person living or having its seat in the Republic of Poland of inheritance property located in the territory of a foreign country at the time of the testator's death - art. 1146 § 3 of the Code of Civil Procedure.

This means that if a Polish citizen or a Polish institution inherits some property abroad, Polish courts must recognize it even if such inheritance of property would be contrary to the fundamental principles of the legal order, and even if the case had previously been judged differently. The purpose of this provision seems obvious - the Polish state does not want to harm its citizens when there is an increase abroad, even if the basic legal principles are against it.

April 2022

Disinheritance and inheritance shares of other heirs

Disinheritance - an institution of inheritance law that allows the testator, subject to exhaustively enumerated conditions, to deprive certain persons of the right to a reserved share, is of considerable importance for another institution of this branch of law, i.e. a reserved share. In order to be effective, the disinheritance must be entered in a valid will. It is impossible to disinherit, provided or subject to a time limit.

Article 1008 of the Civil Code expressly specifies the cases where the entitled (descendant, spouse, parent) may be deprived of the right to a reserved share. They are in turn:

persistent proceedings in a manner contrary to the principles of social coexistence against the will of the testator;
committing an intentional crime against the testator or one of his closest persons against life, health or freedom, or a blatant offense against honor;
persistent failure to fulfill family obligations towards the testator.

The basis for calculating the amount of the reserved share is the inheritance share that would have fallen to the holder of the statutory inheritance. The share, expressed as a fraction, should be specified separately for each entitled person, subject to Art. 992 of the Civil Code, which orders to omit those who renounced the inheritance or were disinherited. Therefore, when disinheritance occurs, the inheritance shares of the uninherited heirs increase, thus affecting the amount of the reserved share. The value of the reserved share is 1/2 of the value of the inheritance share, unless the heir is underage or completely incapable of work - then this value will also be 2/3 of the value of the inheritance share.

For the sake of illustration, it is worth presenting it with an example. Suppose the deceased testator had three childless sons who were the only heirs. If he had not left a will, each of them, ex lege, would inherit 1/3 of the estate. Assuming that the value of the inherited property was PLN 900,000, each of the sons would inherit PLN 300,000.

The situation would be different if the deceased decided to make a will, mentioning only the disinheritance of one of his sons, for example, pointing to alcoholism, which he constantly condemned during his lifetime. If this happened, we would treat the disinherited son as if he did not survive the opening of the inheritance, and since he had no descendants to replace him (according to the principle of inheritance), his inheritance share would increase the inheritance shares of the two other sons. In this case, assuming as above (three childless sons and no other statutory or testamentary heirs), two uninherited sons would inherit 450,000 under the law. PLN - which would consist of 1/3 of the inheritance in total and 1/2 of the inheritance that would have fallen to the third of the sons had he not been disinherited.

By extending the case presented in this way, one can also attempt to enumerate a possible reserved portion. If, for example, the testator, in the described will, not only disinherited one of the sons, but additionally bequeathed all the property to the neighbor who has been dealing with him for years, the two uninherited sons would have a claim against her for a reserved share. It would be entitled to 1/2 of the inheritance share, i.e. in the described situation it would be PLN 225 thousand. zloty.

March 2022

The right to a reserved share of a further descendant

The testator's further descendant is not entitled to a reserved share after him, if - in the event of testamentary inheritance - the testator's descendant submitted a declaration of rejection of the inheritance from the law. This was the ruling of the Supreme Court in the resolution of October 23, 2019

Such a judgment was issued in the following facts: the testator of KZ, who died on April 2, 2010, left her husband WZ and two daughters: VF and MC. VF - the mother of MF born on 28 July 1998 - submitted a declaration of inheritance rejection under the Act. It turned out, however, that the deceased K. Z. left a will; on its basis, the District Court, by a decision of 22 May 2012, found the inheritance purchased by M. C. M. F. filed a lawsuit against M. C. for the payment of the amount of PLN 44,444.44 as a reserved share. He argued that he was entitled to submit this claim, because - if there was a statutory inheritance - he would be the heir, because his mother, who was the direct descendant of the testator, had made a declaration of rejection of the inheritance.

This is a very interesting ruling because it would seem that the grandson should have the right to a reserved share, because his mother, due to the rejection of the inheritance, should be treated as the heir who did not survive the opening of the inheritance.

However, the Supreme Court stated that since there was a statutory inheritance, the mother did not remain the heir, so she could not effectively reject the inheritance. This, in turn, meant that she was still entitled to a reserved share. Moreover, Polish law does not know the institution of rejection of the right to a reserved share, which would result in the transfer of the right to a reserved share to a grandson.

February 2022

Deadline for payment of the reserved share

In the judgment of March 30, 2021, the Court of Appeal in Warsaw (V ACa 57/21) recalled that the reserved portion is a cash benefit having the nature of an inheritance debt (Article 922 § 3 of the Civil Code), therefore the benefit in this respect should be met immediately after being called to comply. This means, among other things, that if someone does not pay the amount of the reserved share after receiving the request for payment, from the date specified in the request for payment of the reserved share, you can demand payment of statutory interest for the delay.

Of course, if the reserved share exceeds the amount specified in the demand for payment plus accrued interest on the date of the judgment, the court should award the higher amount.

January 2022

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. "

December 2021

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.

November 2021

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.

October 2021

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.

September 2021

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.

August 2021

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.

July 2021

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.

June 2021

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).

May 2021

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.

April 2021

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,
receivables,
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.

March 2021

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.

February 2021

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.

January 2021

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.

December 2020

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:

flood,
interruption of communication,
epidemic,
the testator's stay in an infectious diseases hospital,
hostilities

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.

November 2020

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

October 2020

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.

September 2020

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.

August 2020

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.

July 2020

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.

June 2020

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.

May 2020

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.

April 2020

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.

March 2020

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

Ref. No. III CZP 46/15

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.

Ref. No. III CZP 23/19