Blog
Attorney Milena Nowicka
Table of contents:
Acquiring an inheritance involves a number of formalities that you need to follow. It is not enough to simply declare that you are accepting the property of the deceased. What's more, even taking the next step, i.e. declaring the inheritance, does not usually mean that the proceedings are over. What then do you need to do in order to fully settle the succession?
Before discussing the next steps that will await you as an heir, it is worth explaining what an inheritance is in general. At its simplest explanation, it can be taken to mean the totality of the rights and obligations of the deceased which pass to his heirs by inheritance. This means that an inheritance includes not only assets, but also debts.
You acquire the right to an inheritance already at the time of its opening (death of the deceased) or at the time of the opening of the will (if the testator has written down his last will). Initially, however, this is only a transitional stage. This is because it is up to you to decide what happens next. You can therefore:
You have 6 months to make a declaration, and this deadline is counted from the day on which the heir became aware of the title of his appointment. If you do not take steps at that time, the inheritance is deemed to have been accepted with the benefit of inventory.
A declaration of inheritance is a decision which confirms the rights of a person to property of the deceased. It can only be issued by the court, and only after proceedings. It then establishes who the heirs are and the respective shares of the estate.
A mere declaration of inheritance does not make you an heir. It only confirms the rights you already have. What is more, you will find no mention in the inheritance rules of the obligation to initiate the entire procedure. In fact, there is no shortage of families that do not even regulate inheritance matters for generations.
However, this does not change the fact that in many cases it may be necessary for the court to issue a decree of succession. In order for this to happen, however, you will have to initiate the entire procedure by submitting an application. You can do this if you fall into the category of so-called persons with an interest, i.e. those belonging to the circle of:
If a court ruling on a declaration of inheritance merely confirms existing rights, the question immediately arises - why should anyone pay for the proceedings and waste time to obtain such a ruling?
The answer is simple - simply making a declaration of acceptance of inheritance is usually not enough to freely dispose of the deceased's property. In many situations, you still have to prove your rights in addition. Only when you have a declaration of inheritance are you able to, among other things:
A court declaration of inheritance can be even more important for a legatee. This is a person who gets ownership of a specific asset - such as a house or a car. With a declaration of inheritance, the legatee does not have to wait for the entire succession to be concluded. He can already dispose of the bequeathed property in his own name at this stage.
A declaration of inheritance also protects third parties. If, for example, the deceased had unpaid debts, on the basis of a court order creditors are able to prove who the heir is and thus on whom the obligation to pay rests.
However, the judicial route is not the only way to confirm one's rights to an inheritance. There is also an alternative - the succession certificate. Such a document has the same function, except that it is issued by a notary. There are, however, several differences when it comes to the actual process of confirming one's inheritance rights before a court versus before a notary.
First and foremost, drawing up a deed of succession is less time-consuming. You do not have to wait several months for a court date to be set. Not to mention the fact that not every case can be concluded in one sitting in a courtroom. Instead, the succession certificate is drawn up in one visit, which can be arranged relatively quickly.
In addition, you can go to any notary to draw up the succession certificate. It does not matter where the deceased lived before his death - it could even be at the other end of Poland. The situation is different in the case of a declaration of inheritance - the request must always be addressed to a specific court.
However, the certificate of inheritance is not a solution without disadvantages. First of all, confirming your inheritance rights before a notary involves higher costs than going to court. In addition, you cannot always use this route. Notarisation of the succession is only possible when:
So if there are any disputes as to who inherits and in what proportion, or if not all the people can (or want to) attend the notary, you have no choice but to go to court.
You already have a declaration of inheritance or a notarised certificate of inheritance. Does that mean that the entire succession procedure is behind you?
Not necessarily.
At this stage you are entitled to a specific share of the inheritance expressed as a fraction. Let us assume that it is ¼ . In practice, this means that you are entitled to ¼ of the share in the testator's car, ¼ of the property, ¼ of the money and ¼ of the other inherited items. In short, you do not have exclusive ownership of any asset.
Let us hypothetically assume that the deceased left 4 properties of the same value and 4 heirs inheriting in equal shares. However, this definitely does not mean that each of them can consider himself to be the owner of one of the properties. Instead, he will be co-owner in ¼ of each plot.
This state of affairs obviously creates some problems. Firstly, none of the deceased's property belongs exclusively to you. Secondly, you cannot make any decisions on your own when it comes to, for example, selling, renovating the house or other such actions concerning the inherited property. You need the consent of the other heirs for this.
The matter becomes even more complicated when you are unable to agree on how to manage the inheritance - for example, each of you would like to move into a flat, or some of you would prefer to sell family heirlooms and others to keep them.
So the situation will only change when you are no longer co-owners. Then everyone will decide on their share of the property. For this, however, the next stage of the succession procedure - the division of the estate - is necessary.
Partition of the estate is nothing more than the abolition of joint ownership between heirs. So it all comes down to determining who inherits what assets. Only then do you gain sole ownership of part of the inheritance.
It is worth mentioning, however, that the division of the inheritance is not mandatory. If you and the other heirs agree on how to administer the inheritance, you do not have to take this step at all. You may, for example, have inherited a flat, decided to rent it out and share the profits according to your shares. In such a situation, further settlement of inheritance matters may not be necessary.
Usually, however, the situation is much more complicated. It can also happen that, although there are no initial difficulties in reaching an agreement, later on a lot of things change - you no longer like the status quo or you are replaced by your own heirs who are not as keen on the existing solutions. This is when a division of the inheritance may prove to be the best way of avoiding constant conflicts.
Division of the estate: Physical, civil and with a repayment obligation
Let us assume that you and the other heirs have decided to partition the estate. You have 3 options to choose from:
physical partition - you share the various components of the inheritance according to your shares,
civil division - you sell the deceased's assets and share the money,
award of the assets to the deceased with the obligation to repay the other heirs.
Physical partition alone is usually not possible, unless, of course, you want to distribute the inheritance strictly according to the amount of shares you are entitled to. There is a very slim chance that the deceased's estate will include items whose value corresponds to your shares.
The usual approach to a physical distribution is therefore to agree on how to divide the estate and to supplement any excess with a payment to the other heirs. It also happens that some heirs do not care about receiving property that corresponds strictly to their share. They are therefore able to agree to partial concessions - e.g. for the other person to keep the property, in return keeping all the savings of the deceased, even if they do not cover the entire share of the inheritance.
However, the method of inheritance division itself is not everything. You still have to decide whether the whole procedure should take place in court or by agreement.
You are not always free to choose between the two solutions. First and foremost it is important to decide whether you want to carry out a partition of the estate at all and whether you agree on the manner of partition.
If you do, you can do it by agreement. You do not have to go to a notary for this purpose as long as no real estate is included in the inheritance, otherwise a notarial deed will be required.
In other cases, however, a court-ordered partition of the estate will be necessary if you do not all wish to proceed with the partition or if you do not agree on how it should take place. For example, it may happen that a property is part of an estate and several heirs want to take sole ownership of it. They are unable to come to an agreement, so any doubts in this regard will then be resolved by the court.
If you decide on a judicial partition of the inheritance, you will have to file and pay for the application. However, do not be afraid that if one of the heirs does not want to carry out the division of the inheritance, it will prove impossible - active action by one of you is sufficient to start the whole procedure.
However, some heirs choose to go to court not because of the conflict, but because of the cost. Let's say you are in agreement on how to proceed with the succession, but you do not want to incur the high fees associated with a visit to the notary. In this case, you may also decide to go to court. Admittedly, you will have to wait a little for a court date. However, if you are clear about how you want your assets to be distributed, the proceedings will run smoothly and you will be able to reduce the expenses involved.
As you can see, succession matters are more complicated than you might think. They definitely do not end with the issuance of a decree of succession, and even less with the declaration of acceptance of the deceased's estate. That is why, if you want to properly safeguard your interests and be sure that the whole procedure goes smoothly and in your favour, it is best if you use the help of an experienced lawyer.
Let us assume that you and the other heirs have decided to partition the estate. You have 3 options to choose from:
Physical partition alone is usually not possible, unless, of course, you want to distribute the inheritance strictly according to the amount of shares you are entitled to. There is a very slim chance that the deceased's estate will include items whose value corresponds to your shares.
The usual approach to a physical distribution is therefore to agree on how to divide the estate and to supplement any excess with a payment to the other heirs. It also happens that some heirs do not care about receiving property that corresponds strictly to their share. They are therefore able to agree to partial concessions - e.g. for the other person to keep the property, in return keeping all the savings of the deceased, even if they do not cover the entire share of the inheritance.
However, the method of inheritance division itself is not everything. You still have to decide whether the whole procedure should take place in court or by agreement.
You are not always free to choose between the two solutions. First and foremost it is important to decide whether you want to carry out a partition of the estate at all and whether you agree on the manner of partition.
If you do, you can do it by agreement. You do not have to go to a notary for this purpose as long as no real estate is included in the inheritance, otherwise a notarial deed will be required.
In other cases, however, a court-ordered partition of the estate will be necessary if you do not all wish to proceed with the partition or if you do not agree on how it should take place. For example, it may happen that a property is part of an estate and several heirs want to take sole ownership of it. They are unable to come to an agreement, so any doubts in this regard will then be resolved by the court.
If you decide on a judicial partition of the inheritance, you will have to file and pay for the application. However, do not be afraid that if one of the heirs does not want to carry out the division of the inheritance, it will prove impossible - active action by one of you is sufficient to start the whole procedure.
However, some heirs choose to go to court not because of the conflict, but because of the cost. Let's say you are in agreement on how to proceed with the succession, but you do not want to incur the high fees associated with a visit to the notary. In this case, you may also decide to go to court. Admittedly, you will have to wait a little for a court date. However, if you are clear about how you want your assets to be distributed, the proceedings will run smoothly and you will be able to reduce the expenses involved.
As you can see, succession matters are more complicated than you might think. They definitely do not end with the issuance of a decree of succession, and even less with the declaration of acceptance of the deceased's estate. That is why, if you want to properly safeguard your interests and be sure that the whole procedure goes smoothly and in your favour, it is best if you use the help of an experienced lawyer.
Is a declaration of inheritance necessary?
A declaration of inheritance merely confirms existing rights. As a result, you are not obliged to apply for it as you are an heir without it. However, such a document may be necessary if you wish to carry out specific actions, such as withdrawing money from a deceased person's account, selling inherited property or registering yourself as the new owner in the land register.
How do I obtain a decree of succession?
The court issues an order confirming the acquisition of an inheritance at the request of a ‘person having an interest in it’. This category includes not only heirs, but also legatees and creditors. In order to initiate the entire procedure, you must therefore prepare an application in which you include information about the heir, the persons concerned and your claims. You submit the application to the court together with the necessary attachments.
Establishment of succession - what documents?
In addition to the application for a declaration of inheritance, you will need to submit several documents. These will include, in particular, the deceased's abbreviated death certificate and certificates of relationship, such as marriage certificates and birth certificates for children. If the deceased made his or her last will and testament, this must also be included in the application.
Partition of the estate - what is it?
A partition of the estate consists of removing the joint ownership between the heirs. Before you carry out this procedure, all assets are jointly owned - you cannot sell them yourself, nor are you the sole owner of any of them. It is only through the division of the estate that this changes. You and the other heirs will then either sell all the assets and share the money (civil division), carry out a physical division or award the assets of the estate to specific heirs with the obligation to repay the others.
Partition of an inheritance in court - how long does it take?
Inheritance division proceedings can take a few weeks or, on the other hand, drag on for years. A lot depends on whether you and the other heirs agree on how the deceased's assets are to be distributed. The more disputes, mutual settlements and doubts arise, the longer the whole procedure will also take.
