Inheritance - legal advice
What and where to do?
In relation to matters of inheritance, we often encounter prosaic problems where we should go to solve our problem. This section provides answers to questions about when to go to a notary, when to a lawyer, and when to court. We also provide a brief description of legal procedures.
Declaration of acceptance or rejection of inheritance
A statement about the simple acceptance of the inheritance or with the benefit of inventory or about the rejection of the inheritance may be submitted to the notary or the district court in whose district the place of residence or stay of the person submitting the declaration. The notary or court will immediately send a statement, together with attachments, to the court of inheritance.
The declarations referred to above may also be submitted to the inheritance court in the course of proceedings for establishing rights to inheritance.
The declaration of acceptance or rejection of an inheritance should contain:
- the testator's name and surname, date and place of his death and place of his last residence;
- title of appointment to inheritance;
- content of the submitted declaration.
- listing all persons belonging to the group of statutory heirs known to the applicant,
- mentioning any wills, even if the person submitting the declaration considered them invalid, as well as data regarding the content and place of keeping the wills.
The statement should include a copy of the testator's death certificate or a final court decision on declaring him deceased or declaring death, if this evidence has not already been submitted.
If the declaration was made orally, a report shall be drawn up from the declaration.
Acceptance or rejection of an inheritance is notified to all persons who, according to the statement and submitted documents, are called to inherit, even later.
If a declaration of acceptance of the inheritance with the benefit of inventory has been made, and the inventory has not been prepared before, the court will issue a decision to make an inventory.
Announcement of a will
A person with a will is obliged to submit it to the court of succession when he learns about the death of the testator, unless he has submitted it to a notary public. Anyone who unreasonably evades this obligation shall be liable for the damage resulting therefrom. In addition, the inheritance court may impose a fine on the applicant.
In order to determine whether there is a will and where it is located, the court of inheritance may order a statement in this regard, using the appropriate procedure provided for the disclosure of inheritance items.
The court, after hearing the person in whom according to the obtained information the will is found, will issue an ex officio order ordering her to submit her will within the set time. An appeal may be lodged against the court's decision regarding the submission of a will.
The court or notary public opens and announces a will when he has proof of death of the testator. Interested persons are not notified about the opening and announcement dates, however they may be present during this activity.
When several testaments have been made to one testator, they all open and proclaim, and each of them mentions the others.
The report on the opening and announcement of a will describes its external condition and lists its date, date of submission and person who made the will. The will shall contain the date of opening and announcement.
About the opening and announcement of a will, the Court of Inheritance or notary notifies, to the extent possible, the persons to whom the wills relate, as well as the executor of the will and the probation officer. The notary public notifies the inheritance court without delay by sending a copy of the prepared report.
The will and the opening and announcement report are kept in the court of succession, unless it has been submitted to a notary public. However, at the court's request, the notary sends a will to that court. The above regulations apply accordingly to the letter stating the content of the oral will.
Confirmation of inheritance acquisition
The court of inheritance issues an order confirming the acquisition of an inheritance after conducting the trial, at which it calls the applicant and persons who may be considered as heirs to the statute and will.
The inheritance court shall repeal the registered act of confirmation of inheritance if, in respect of the same inheritance, a decision has been issued on the acquisition of the inheritance.
In the case of registration of two or more acts of succession in relation to the same inheritance, the court of succession at the request of the person concerned repeals all acts of succession and issues an order confirming the acquisition of the inheritance. Except for the circumstances indicated above, the repeal of the registered act of inheritance certification is allowed only in cases specified in the Act. In the event of revocation of the registered act of confirmation of inheritance, the court shall notify the notary public who made the act, and the National Notary Council, by sending copies of the issued decision.
The inheritance court examines ex officio who is the heir. In particular examines whether the testator has left a will and calls for a will to be made to the person who is likely to have a will. If the will is made, the court will open it and announce it.
As proof that there are no other heirs, the assurance given by the applicant heir may be accepted.
In the assurance, the applicant should make a statement as to everything that is known to him:
- the existence or non-existence of persons who would exclude known heirs from inheritance or inherit with them;
- about the testator's wills.
In terms of criminal effects, the assurance is tantamount to giving evidence under the promise, which the judge should advise about.
If the assurance was not submitted, or if the assurance or other evidence is not considered by the court to be sufficient, the decision in the matter of obtaining the inheritance may be taken only after the heirs have been called by announcement.
The advertisement should contain:
- first name, last name, profession and last residence of the testator;
- date of death of the testator;
- an indication of the assets remaining after the testator;
- a summons that the heirs within six months of the day indicated in the announcement declare and prove the acquisition of the inheritance, otherwise they may be omitted in the order confirming the acquisition of the inheritance.
The announcement should be placed in a readable letter throughout the entire territory of the State and made publicly available in the place of the last residence of the testator in that area, in a manner accepted in that place.
If the value of the inheritance is insignificant, the court may refrain from placing an advertisement in writing.
After six months from the date of the announcement, the court will appoint a hearing to examine the demands, at which it will also call the persons who made the request and indicate the place of residence.
If, within six months from the date of the announcement of the summons of heirs, no one notified the acquisition of the inheritance or, having reported it, did not prove it at the trial, the court will issue a decision confirming the acquisition of the inheritance by the heirs whose rights have been demonstrated, and in their absence - by the State Treasury as the heir statutory.
The court finds that the heirs have acquired the estate, even if they were other persons than those indicated by the participants. In the decision on the acquisition of the inheritance, the court mentions the testator and all heirs who have fallen, as well as the amount of their shares.
If the acquisition of an inheritance has been established or an act of confirmation of inheritance from a person recognized as deceased or whose death has been confirmed by a court order and the decision on the recognition of that person as deceased or on the confirmation of his death has been annulled, the court of inheritance will ex officio revoke the decision on the confirmation of the acquisition of inheritance or act of confirmation of inheritance.
Proof that a person who has obtained a declaration of inheritance is not an heir or that his participation in the inheritance is different from the ascertained may only be carried out in proceedings for annulment or change of the confirmation of inheritance, in accordance with the provisions of this chapter. However, the one who was a participant in the proceedings for the confirmation of the purchase of an inheritance may only demand a change in the order confirming the acquisition of the inheritance, if the request is based on the basis which he could not invoke in these proceedings, and submits the application for change within one year from the day on which he obtained this potency.
Any interested party may submit a request to initiate such proceedings.
In the event of proof that the inheritance was acquired in whole or in part by a person other than that indicated in the final decision on the confirmation of the acquisition of the inheritance, the court of inheritance, by changing this order, shall determine the acquisition of the inheritance in accordance with the actual legal status.
The above regulations apply accordingly to the registered act of inheritance certification.
Contract division of the estate
The inheritance division may take place either under an agreement between all heirs or by court order at the request of any heir. If the estate includes real estate, the department agreement should be concluded in the form of a notarial deed
If the inheritance belongs to an enterprise, the inheritance agreement should be concluded in writing with signatures authenticated by a notary public. However, if the enterprise includes real estate or the enterprise is covered by a succession board, the agreement on the division of the estate should be concluded in the form of a notarial deed.
The contractual division of the estate may cover the entire estate or be limited to part of the estate.
Evasion of the legal consequences of the inheritance agreement concluded under the influence of an error can only occur if the error concerned a factual situation which the parties considered undoubted.
Court Inheritance Department
In the application for the inheritance department, reference should be made to the inheritance acquisition or registered inheritance certificate and inventory, as well as to indicate which spa the donor made wills, where they were submitted and where they are. If the inventory has not been prepared, indicate in the application the property to be the subject of the department.
If the estate includes real estate, evidence must be provided that the property was owned by the testator.
If the confirmation of the inheritance acquisition has not yet taken place and the inheritance certificate has not been registered, the decision on the inheritance acquisition is issued by the court in the course of the division proceedings, applying the provisions of Chapter 8 of the Code of Civil Procedure
Co-heirs should provide the court with their age, profession, family status and details of their earnings and assets, as well as the earnings and assets of the spouse, explain how they have benefited from the inheritance so far, as well as provide other circumstances that may affect the decision, what each of the co-heirs will receive from the inheritance.
At the request of a department participant, reported no later than at the first hearing, the court of succession may refer the case to the district court in whose district the estate or a significant part thereof is located, or to the district court in which all co-heirs live.
The composition and value of the inheritable estate shall be determined by the court. The court division of the estate should cover the entire estate. However, for important reasons it may be limited to part of the estate. The court partial division of the estate may occur in particular because the estate includes an enterprise. If the inheritance consists of an enterprise, the inheritance division includes that enterprise taking into account the need to ensure the continuation of the business activity carried out with its use, unless the heirs and spouse of the testator who is entitled to participate in the enterprise have not reached agreement as to the continuation of this activity.
In the event of a dispute over the existence of the right to request a division of the estate, as well as in the event of a dispute between the co-heirs as to whether a certain item belongs to the estate, the court of succession may issue a preliminary order.
In the division proceedings, the court also decides on the existence of provisions regarding items or rights belonging to the estate, as well as on mutual claims between the co-heirs due to possessing individual inheritance items, collected benefits and other revenues, made on the decline of expenditures and paid inheritance debts.
In the absence of grounds for issuing a departmental order on the basis of a consistent application by participants, the inheritance department will be identified according to the provisions below.
Provisions regarding the abolition of joint ownership shall apply accordingly to the division of inheritance. At the request of two or more heirs, the court may assign them succession proceedings in whole or in part in such a way as to grant them certain object or certain objects belonging to the estate as joint ownership in certain fractional parts.
If all the inheritance assets or individual items constituting its joint property are jointly owned by another title than inheritance, the division of the inheritance and the abolition of joint ownership may be combined in one proceeding.
Notarial deed of succession certification
The notary draws up a certificate of statutory or testamentary inheritance, excluding inheritance on the basis of special wills.
Before preparing the inheritance certificate, the notary public writes down the inheritance report with the participation of all persons who may be considered as heirs to the statute and will.
By starting to write the inheritance report, the notary public instructs the persons involved in writing the report about the obligation to disclose all the circumstances covered by the content of the report and about criminal liability for making false statements.
The inheritance report shall include in particular:
- consistent request for an inheritance certificate from persons involved in writing the report;
- statements on the existence or non-existence of persons who would exclude known heirs from inheritance or inherit with them;
- statements about the testator's known wills or absence of such wills;
- a statement that in relation to the inheritance, no decision on the inheritance of purchase of the inheritance has been issued and the inheritance of purchase of the inheritance is not pending and no inheritance certificate has been drawn up;
- a statement as to whether the inheritance includes a farm and which of the heirs appointed to inherit from the Act meets the conditions provided for inheriting the farm;
- statements whether the testator at the time of death was a foreigner or, without having any citizenship, did not live in the Republic of Poland or inheritance includes property rights or possession of real estate located abroad;
- statements whether statements of acceptance or rejection of inheritance have been made, or a decision on non-compliance has been issued inheritance and whether agreements were concluded with the future testator regarding the waiver of inheritance from him;
- mention of a notary public about criminal liability for making false statements.
If six months have not elapsed since the opening date of the succession, heirs 'declarations should include the heirs' simple acceptance of the inheritance or acceptance of the inheritance with the benefit of the inventory or rejection of the inheritance, unless the heirs have already been submitted by the heirs. In this case, mention should be made of the date, place and content of the declarations made by individual heirs.
The notary attaches to the inheritance report:
- a copy of the testator's death certificate;
- copies of marital status files of persons appointed to inheritance from the Act;
- other documents that may affect the determination of inheritance rights.
If you make a will, the notary public will open and publish it, unless you have already opened and announced the will. Minutes are made of the opening and announcement of a will.
After writing the inheritance report, the notary draws up an act of confirmation of inheritance, if there is no doubt as to the heir and the amount of shares in the inheritance.
A notary public refuses to issue an inheritance certificate if:
- an inheritance certificate has already been prepared in relation to the inheritance or a decision confirming the purchase of the inheritance has been issued;
- in the course of preparing the inheritance report, circumstances will appear that during its preparation there were not all persons who could be considered as heirs to the statute or will, or there are or existed wills that were not opened and announced;
- due to the lack of the testator's spouse and relatives appointed to inherit from the Act, the inheritance falls as the statutory heir to the municipality or the State Treasury;
- the testator at the time of death was a foreigner or, without having any citizenship, did not live in the Republic of Poland or inheritance includes property rights or possession of immovable property located abroad.
- day, month and year and place of preparation of the act;
- first and last name and registered office of the notary's office, and if the act was drawn up by the deputy notary public - also the surname and surname of the deputy;
- first and last name of the testator, the names of his parents and his PESEL number;
- date and place of death of the testator and his last place of residence;
- an indication of the heirs who fell - the names of parents and date and place of birth of natural persons, and in the case of legal persons - the name and seat;
- the title of the appointment to the inheritance and the amount of shares in the inheritance, together with an indication in the event of statutory inheritance, whether the heir was the spouse of the testator or his relative and to what extent, and in the event of inheritance along with the form of the will;
- an indication of the heirs inheriting the farm subject to inheritance from the Act and their shares in it;
- citing the opening protocol and announcement of a will;
- signatures of all those involved in writing the inheritance report;
- signature of a notary public;
- annotation about registration,
An inscription on the inheritance certificate shall be made on the inheritance record.
The notary immediately after preparing the inheritance certificate, makes his entry in the register of inheritance certification files by entering, via the data communications system. The notary public provides the entry with a secure electronic signature verified by a valid qualified certificate.
The registered act of confirmation of inheritance has the effects of a final decision on confirmation of the acquisition of an inheritance.