The passing of property and assets does not always go as expected or planned. Getting the inheritance is rarely as easy as depositing a check. The situation is particularly difficult if the deceased would live in one country (say in the United Kingdom) but his estate is located in two countries (say in the United Kingdom and in Poland). The UK is an example of common law country and Poland is an example of civil law country. Each legal culture and those who practice the law often knows little about the other. The differences between the common law regime and civil law regime are huge.
How to handle the situation when a deceased has been the owner of the property in the UK and in Poland and the heirs want to take over these assets in both countries?
The heirs need to do seven things:
1. Check whether there is a Will left by the deceased either in the UK or in Poland
When someone dies, survivors receive the estate through inheritance. This is usually a cash endowment given to the children but also real property and other assets. Assets distribution is determined during the estate planning process.
If the deceased left the Will – the process should be relatively easy. The Will specifies who will receive what.
If the deceased left no Will – inheritance usually become more complicated. In that case, a probate court (in the UK) or a civil court (in Poland) must determine the wish of the deceased as best it can.
The heirs should establish whether there is a Will or any other documents which express the last wish of the deceased.
2. Verify the validity of the Will in both jurisdictions
The requirements for what makes a Will valid varies from country to country. In England and Wales, a Post-it note with the person’s wishes written on it can be sufficient to count as a Will, provided it is executed correctly. A valid Will could be written on the back of a dirty napkin provided that it was signed by the testator and witnessed correctly. However, the signature still has to be handwritten.
In Poland, the Will has to be handwritten or made as a deed in front of the notary public.
The common law regime and civil law regime are different and sometimes a Will which is valid in the UK could be invalid in Poland and vice versa.
The validity of the Will should be verified by lawyers in both jurisdictions.
3. Verify the legal title to the property located in the UK and in Poland
It is recommend to verify the legal title to the property both in the UK and in Poland. This is to avoid the situation in which procedure for the confirmation of inheritance is carried out but actually there are no assets to be distributed. This is particularly important in Poland because the civil court does not verify the ownership issues during the confirmation process.
4. Decide the common strategy to proceed (depending on the situation) in relation to both jurisdictions
The heirs should decide how they are going to proceed. The process is complicated and in most cases the Polish lawyers will be needed for the Polish procedure and the UK lawyers will be needed for the UK procedure. There is very little interaction between civil law regime and common law regime. In most cases, the probate procedure in the UK will be carried out separately from the Polish procedure.
Under Polish law, inheritance of the real property located in Poland requires a decision of the Polish court. So, in most cases, the decision of the probate court in the UK will not be sufficient.
5. Check whether all potential heirs are aware of the situation and whether they are willing to cooperate with each other
All the heirs have to be notified about the proceedings because they will be formally participants of the procedure both in the UK and in Poland. It is important for the heirs to cooperate with each other by exchanging information and seeking solutions. If there is conflict between the heirs – it will lead to court battles lasting years.
6. Carry out the probate procedure in the UK
Depending on the situation, there will be an executor or personal representative of the estate in the UK who will be charged with managing the estate and wrapping up the decedent’s affairs, which includes identifying and resolving all debts and filing tax returns in the UK.
7. Carry out the inheritance procedure in Poland
Depending on the situation, there will be a decision of the civil court or the notarial deed on confirmation of inheritance.
Probably the biggest difference between the is in the role of the legal representative. Under the civil law (for instance under Polish law), on death there is an automatic vesting of ownership of the deceased's property in the heirs of the deceased, whereas under the common law, there is no such automatic vesting. Instead, the executor, administrator or estate trustee holds the property on trust for persons with a financial interest in the estate, who must account to the beneficiaries but who do not have direct ownership or control. Other common features of civil law jurisdictions are that (with few exceptions) they do not have trusts. Polish law does not recognize trusts, which creates problems for a deceased person with a Will that contains a trust.
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