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.