An inheritance is money or property that the testator leaves to his beneficiaries – often family members, close friends, business partners, religious organizations or charities – by way of the Will or without the Will.
In Poland, testators are free to give their estates to anyone they choose, but there are rules to protect certain individuals. Under the rules of the Polish Civil Code, the spouse and children are entitled to a forced share of the estate (in Polish zachowek) in the case of both statutory succession and succession under the Will. The forced share is equal to half of the value of the share the person would have received through succession pursuant to the Polish Civil Code.
The Polish legal system knows two succession methods: testamentary and statutory. Testamentary succession takes place on the basis of the Will drawn up by the deceased. Statutory succession takes place in a situation where the deceased has left no Will. The Polish Civil Code then stipulates who, and in what order, may become an heir.
When someone dies and leaves the property in Poland, their estate is subject to formal process of the legal validation of the Will – or of a court-decided distribution plan for the estate, in the absence of the Will. It should be remembered that – if the estate includes the property located in Poland (land or buildings) – a judgment of the Polish Court will be required.
In case an individual dies intestate, the laws of succession come into play. The law of succession defines the rules of devolution of property in case a person dies without making the Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons. Under Polish law a spouse of the deceased and children rank equally in determining how the intestate estate should devolve, however a spouse can never inherit less than one quarter of the estate. So, for example, where there are four children, the spouse would receive one quarter of the estate and the children would share three quarters between the four of them.
There is no recognisable, formal equivalent of a grant of probate in Poland. However, the Polish Court normally does ratify the terms of the Will and makes a judgment on the devolution of property on heirs upon the death of the testator.
There are two routes to handle the inheritance formalities in Poland: either through a Polish Court in the probate proceedings or through the Polish notary public. Which route will be better in any given case depends on circumstances.
- 1. Decision of a Polish Court in the probate proceedings (in Polish postanowienie)
Typically, an application for a decision on the acquisition of inheritance is made within several months after the death of the testator. Formally speaking, there is no deadline by which an application for a decision must be made. The application can be made by each of the heirs acting individually or all of them acting jointly.
If there is any disagreement among the heirs or if any of the heirs cannot be present in person during the proceedings, then applying to the Court is the only solution. Depending on the situation the court proceedings take between 12 and 18 months.
- 2. Inheritance certificate from the Polish notary public (in Polish akt poświadczenia dziedziczenia)
- If all the heirs agree as to the proposed plan for the distribution of the estate and each of them can attend the meeting at the notary public personally, then the easiest way forward is to arrange the meeting at the notary office in Poland and sign the deed on the acquisition of inheritance. Then, the notary public will issue a special inheritance certificate which is sufficient to re-register the property in the land and mortgage register and to apply to banks for the release of money.
In cases of cross-border inheritance, the first point to establish is the domicile of the deceased. This can be a complicated area of law and requires legal analysis by lawyers. Broadly, the factors to consider are the domicile of origin, the length of time spent in new country, any evidence of intention to acquire a new domicile, the regulatory visits back to the country of origin and the retention of property in that country. It should be remembered that even if the Will is governed by the foreign law – if the property is located in Poland – a judgment of the Polish Court will be required. The Polish Courts can issue a decision based upon the general tenor of the Will or apply the Polish rules if the need arises.
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