Due to a large group of Poles living abroad, as well as due to mixed marriages concluded by the Poles, which results in the fact that foreigners frequently become heirs of property located on Polish territory, the issue of succession to property left in Poland on the basis of wills made abroad is of utmost social importance. This issue is also relevant in the situation where a citizen of a country other than Poland disposes of assets in the will, which includes property located on Polish territory, which due to the interest of foreigners purchasing real estates in Poland observed in recent years may be a common situation as well.
There are some key issues that have to be always examined in case to state who is an heir in a given case and how to confirm this officialy. It is to be underlined that proper analysis of a situation depends on the date of death of a testator. If a testator died on or after 17 August 2015 we have to apply in Poland as the EU-member state the REGULATION (EU) No. 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. The aim of this regulation is that the court of one country, applying the law of one country, states who is an heir of the whole property of the deceaed person.
However, if death took place before 17 August 2015 the previous rules have to be applied. In this entry I would like to explain some important issues connected with such inheritance as we will still face such cases certainly for many years in the future.
If the testator left real property in Poland, the heir (or legatee), so as he can freely dispose of it, must in accordance with the Polish Code of Civil Procedure obtain confirmation of inheritance acquisition issued by a Polish court, regardless of any inheritance proceedings conducted in another country. Alternatively – instead conducting court proceedings in Poland – the heir may obtain the deed of succession certification drawn up by the Polish notary (if it is allowed in a certain case). It means that it is possible that an heir confirms the inheritance in one country and obtains the property left by the deceased person in this country upon such confirmation, but he will have to lead the second procedure in Poland in order to confirm his rights to real property left by the deceased person in Poland. The Polish court might apply the foreign law during such proceedings if it is the proper law according to Polish conflict-of-laws rules.
One of the most important questions is if the will drawn up abroad may be effective in relation to property left by the testator in Poland. The answer is positive, provided that conditions for its validity shall be fulfilled. The validity of the will drawn up abroad shall be assessed in Poland according to the national law of the deceased at the time of drafting the will. Accordingly, if we deal e.g. with an Italian citizen, who did not have another citizenship, the validity of a will made in Italy will be assessed in Poland on the basis of Italian law. However, if this will was drawn up in Italy by a Polish citizen (even though he was also a citizen of another state – including an Italian citizen), in Poland it will be subject to Polish law only and, therefore, in order to assess in Poland the validity of the will prepared by a Polish citizen abroad, the provisions of the Polish Civil Code will be applicable. On the other hand, if we deal with the citizen of at least two countries, who is, however, not a Polish citizen, then as far as the national law is concerned, he is subject to the law of the country which he is most closely connected with and this law will be taken into account when assessing in Poland the validity of the will. The above mentioned rules are governed in Poland by The Private International Law which constitutes the Polish conflict-of-laws rules.
It should be noted, however, that for assessing the validity of the will in Poland in terms of its form the Polish legislator refers to the Convention on the conflicts of laws relating to the form of testamentary dispositions, done at The Hague on 5 October 1961. It is very important because the laws of different countries can provide various forms of preparation of wills. In Poland for the most popular can be considered a form of a handwritten testament and the testament in form of a notarial deed. A handwritten form provided in the Polish Civil Code requires that the testator draws up a will in such a way that he will write the whole manuscript, sign it and put a date on it. It should be emphasized that writing a will on the computer, printing it and signing it by the testator does not comply with the written form according to Polish law, while a will drawn up in such form may be valid under the law of another country, if that law allows this form of wills. Therefore, if the will is drawn up in a form that is allowed by the law of one of the countries specified in Art. 1 of the above mentioned Convention, the testament will fulfill in Poland the condition of its validity in terms of form, even though Polish law did not provide for such a form.
As indicated above, the validity of a will drawn up by a Polish citizen abroad will be assessed on basis of the provisions of the Polish Civil Code, except from the form of a will. The latter may raise certain problems in practice when the law of another country provides different regulations in the field of inheritance law.
The basic principle of the Polish inheritance law is that an heir inherits a share in inheritance, rather than the specific items that the latter consists of (it is different by legatees, however it will not be further explained in this entry). The testator may in his last will appoint all or some of the heirs to the whole or the part of the inheritance. Thus, if the testator has e.g. appointed to inheritance two of his children in equal shares, it means that each child will inherit a share of one half of the whole estate. The issue of what items he will actually receive from the estate, will be specified in the contract for the distribution of the estate concluded between all the heirs or in the court ruling issued at the request of any of the heirs. Until the estate has not been distributed, all heirs are entitled to a share in all inheritance items in the proportion of their inheritance share. The testator is not therefore capable to effectively determine in his last will, which inheritance items shall be distributed to his heirs.
In practice it happens that the testator, when drawing up a will, does not take into account the abovementioned rules of inheritance. This is often the case when the last will is prepared by someone on his own (i.e. not by the notary) or the last will is prepared abroad (even by the notary). It is to be remembered that the notary in each country may advise only on the content of the last will according to law of the country where he practices. Therefore the last will prepared in the other country, especially in the country which law provides possibility of distribution of certain estate to the heirs in the last will (like e.g. in England) may cause significant practical problems while confirming succession to real property located in Poland. Each case requires a very specific and detailed analysis. Even similar cases – becaue of tiny differences – may lead to different results.