Statutory and testamentary succession - what is worth knowing about Polish inheritance law?

The death of a loved one is always a difficult experience. During this difficult time, there are often additional complications related to legal issues concerning the inheritance. Understanding the basic rules of inheritance can significantly ease the succession process and prevent potential family conflicts.

Two main modes of succession

In the Polish legal system we distinguish between two basic modes of succession:

1. testamentary succession

A will is a unilateral legal act in which the testator disposes of his or her property in the event of death. It is the surest way of ensuring that the estate is distributed in accordance with the deceased's wishes.

2. statutory succession

In the absence of a valid will, succession follows the rules set out in the Civil Code, where heirs are named according to their degree of relationship to the testator.

Wills - types and formal requirements

Polish law distinguishes between several types of wills:

Ordinary wills:

  1. Handwritten will (holographic) - the most common form of will, must be:
    • Entirely handwritten by the testator
    • Dated
    • Signed by hand
  2. Notarial wills - drawn up in the form of a notarial deed, provides the highest level of legal security.
  3. Allographical will - drawn up in the presence of a representative of the local authority (mayor, town mayor or authorised employee).

Special wills (used in exceptional circumstances):

  1. Oral will - possible where there is a fear of the testator's imminent death or special circumstances prevent the drawing-up of an ordinary will.
  2. Travel will - made while travelling on a Polish ship or aircraft.
  3. Military wills - drawn up by persons performing military service in times of mobilisation, war or state of emergency.

It is worth remembering that special wills cease to have effect six months after the circumstances which justified their creation have ceased to exist.

Statutory succession - who inherits and in what order?

In the absence of a will, the Civil Code defines the following groups of heirs:

First group: spouse and children

  • Children shall inherit in equal shares
  • The spouse inherits an equal share with the children, but not less than 1/4 of the total inheritance
  • A child who does not survive the opening of the succession shall be replaced by his or her descendants (principle of representation)

Second group: spouse and parents

If the testator had no children, they inherit:

  • Spouse - 1/2 of the estate
  • Parents - 1/4 of the inheritance each

If one parent is deceased, his or her share falls to the testator's siblings or their descendants.

Third group: siblings and descendants of siblings

In the absence of a spouse and parents, the entire succession falls to the testator's siblings in equal shares. If one of the siblings does not live to see the opening of the succession, his or her share falls to his or her children.

Fourth group: grandparents

In the absence of a spouse, descendants, parents, siblings and descendants of siblings, the entire inheritance goes to the testator's grandparents in equal shares.

Fifth group: stepchildren

If all the previously mentioned heirs are missing, the inheritance falls to the stepchildren (children of the testator's spouse who are not also his children).

Last group: Municipality and Treasury

In the absence of all statutory heirs, the inheritance falls to the municipality of the testator's last place of residence or to the State Treasury.

Retainer - protection of next of kin against omission in a will

A retainer is a legal institution that aims to protect immediate family members from being completely left out of a will. Those entitled to a reserved share are:

  • Descendants (children, grandchildren)
  • Spouse
  • Parents of the testator who would be called to the succession by law

The amount of the reserved amount is:

  • 1/2 of the value of the share of the estate which would fall to the beneficiary in a lawful succession - general rule
  • 2/3 of the value of the inheritance share - if the beneficiary is permanently incapacitated or a minor

It is worth remembering that the claim for a reserved portion is time-barred 5 years from the date of the declaration of the will.

Acceptance and rejection of the succession

The heir has three options:

  1. Acceptance of the succession outright - the heir shall be liable for the debts under the succession without limitation and with all his assets.
  2. Acceptance of the succession with the benefit of inventory - liability for debts under the succession limited to the value of the assets of the estate.
  3. Rejection of the succession - the heir shall be treated as if he had not lived to see the opening of the succession.

Since 18 October 2015, the rule has been in force that failure to make a declaration within six months of the date on which the heir became aware of the title of his appointment is equivalent to acceptance of the succession with the benefit of inventory.

Step-by-step succession proceedings

  1. Obtaining a death certificate - the basic document initiating the succession proceedings.
  2. Determining the circle of heirs - verifying whether the deceased left a will and determining the persons entitled to inherit.
  3. Submission of a request for a declaration of succession to the district court with jurisdiction over the testator's last place of residence or a notarised certificate of inheritance.
  4. Submission of a declaration of acceptance or waiver of the succession - within six months from the date on which the heir became aware of the title of his appointment.
  5. Drawing up the inventory - particularly relevant in the case of a succession with the benefit of inventory.
  6. Division of succession property - may be by agreement between all heirs or through the courts.

Practical tips

  1. Consider making a will - Even if your estate is not substantial, a will can save your heirs a lot of trouble and clearly express your will.
  2. Choose the appropriate form of the will - In the case of more complicated estate or family situations, it is worth considering a notarial will.
  3. Regularly update your will - especially after significant changes in the family or property situation.
  4. Consider making a bequest - It allows specific assets to be transferred to the persons named in the will.
  5. Be careful when inheriting inheritances encumbered by debts - if there are doubts about the testator's assets, it is safer to accept the succession with the benefit of inventory.

Summary

Inheritance law, although it may seem complicated, is based on fairly clear rules. Being aware of the basic regulations allows you to be better prepared both as a testator and as an heir. In more complex situations, it is advisable to consult a lawyer specialising in succession law who can help guide you through the process for the benefit of all parties involved.