Curator of the inheritance – and who is it? Brief description of the institution.

The probate officer is a court-appointed person who safeguards the interests of the heirs through the day-to-day management of the estate to the exclusion of the heirs (with a few exceptions). Today we will look at this solution from the perspective of legal comparative studies, a comparison of Polish and Austrian law, in which a similar solution (German : Verlassenschaftskurator ) operates. In this newsletter, I will present an analysis of the differences between these two variants of the same solution. Due to how significant the similarity of both legal orders seems to be, the differences in solutions recede into the background. But I must admit that it is the differences that make the important details.

General legal framework

In Poland, the probation officer must apply the provisions of many laws and regulations at once to determine the scope of his own competence. In Austria, it is simpler, because the legal regulations governing the functioning of the probation officer are less, but on the other hand they refer to the general principles of civil law, which naturally requires the probation officer to have knowledge in this field and a legal sense.

Moreover, in Austrian law there is no such requirement as in Polish law to consider the appointment of a probation officer from the circle of the heirs’ closest relatives at the beginning, so candidacies of professional persons may be considered from the very beginning (in Austria, mainly lawyers – German Rechtsanwälte – and notaries – German Notaren ).

Moreover, in Poland the probation officer is the exception rather than the rule, especially outside the former Austrian partition (coincidence?).

In Austria, however, it is a standard, which is related to the specificity of Austrian inheritance proceedings.

In short: many activities are performed by the court, the court commissioner (German: Gerichtskomissar ) or other entities on their own, ex officio, without the parties’ requests, so the adversarial nature of the proceedings remains in the background. In turn, in Poland, a participant in inheritance proceedings has a greater influence on whether the proceedings will start at all and in which direction they will go.

The succession curator in Austria does not have a statutory codified range of activities that he can undertake – the court indicates them each time in the decision on the appointment of a custodian. Austrian courts describe the range of activities very generally, as all activities relating to inherited property. In Poland, the duties and rights of a probation officer are codified and the Court cannot expand or narrow them. According to Art. 667 §§ 1 and 2 of the Polish Code of Civil Procedure, the curator of the estate manages the estate under the supervision of the court of inheritance, and therefore should try to clarify who the heir is and notify the heirs of the opening of the estate (Article 667 of the Code of Civil Procedure).

Inheritance estate management

In Austria, this administration is different for the period before and after acceptance by the heirs, according to §§ 156 and 810 of the Austrian Civil Code (ABGB).

Prior to the acceptance of the inheritance by the heirs, the court’s consent must be obtained for any action that goes beyond ordinary administration, regardless of whether it concerns movable or immovable property (German: Genehmigung ). After acceptance of the inheritance, the obligation to obtain consent is limited only to activities related to the disposal of real estate, i.e. its sale or encumbrance with a limited right in rem (e.g. the Austrian construction law – German Baurecht ) .

In Poland, there is no such division – until all the heirs take over the inheritance, the guardianship of the inheritance exists, does not cease and its legal framework does not change. The acceptance or rejection of the inheritance does not affect the guardianship of the inheritance and the scope of the obligation to obtain consent to perform an operation regarding the inheritance property.

However, there is something in common between these two legal orders, and it is the division between ordinary management activities and activities exceeding it (German respectively: ordentliche Wirtschaftsbetrieb, nicht zum ordentlichen Wirtschaftsbetrieb gehörte [Tätigkeit] ). Probation officers have the right to take the first actions on their own, and for the second, they must obtain the consent of the Probate Court (not guardianship!). Without this consent, the act exceeding ordinary management will be invalid. The catalogs of ordinary management activities do not differ significantly – movables can be freely traded if they are of low value and do not change the essence of the inheritance, while real estate activities usually require court approval.

However, there must be a catch to this – and there is indeed a difference.

The Austrian court may give consent to perform such an activity after it has been performed (the so-called subsequent consent), while in Poland the consent must always be given before the activity (prior consent).

There are also some differences in the steps required to obtain consent. In Poland, the probation officer of the estate must prove that the board’s action is necessary, and no other less onerous action will bring the desired positive effects for the heirs, while the sale of real estate in Poland appears to be an exceptional activity (which may result from the dominance of the the real performance of the benefit and the perception of real estate as patrimony). The court should take into account the position of the heirs: whether they agree to such an act. In Austria, it is different: any transaction, including the sale of real estate, will receive court approval if it is beneficial to the heirs and leads to the liquidation of the inheritance property. Austrians believe that the more liquid the property, the better,

Austrian curiosity – curator of part of the inheritance – Polish analogy?

A solution characteristic of Austrian inheritance law is the institution of a guardian of a separate part of the estate (cf. § 156 of the Austrian Act on non-contentious proceedings, German Außerstreitgesetz ). Such a curator covers the management of only a separate part of the inheritance. Separation of a part of the inheritance results from the court separating from the inheritance property such a part that would correspond to the claim of the testator’s creditor, which was reported to the court due to the risk arising from the possible mixing of the inheritance property with the heir’s personal property (cf. § 812 ABGB). The task of such a curator is to prevent mixing of the separated part of the inheritance with the property of the heirs and to manage this part of the inheritance for the duration of the separation.

The Polish law does not allow for such a solution. However, it is possible to find an analogous institution. It is allowed to appoint an administrator or custodian of part of the inheritance property if the testator’s creditor submits a request to secure his claim. The Act itself lists such a method of securing real estate (cf. Articles 635 and 636 of the Code of Civil Procedure). Undoubtedly, this brings the analyzed legal orders closer together.

Remuneration of the probation officer

In Poland, the remuneration of a probation officer is regulated by various acts, but in short, it is based on the Family and Guardianship Code and results from the valuation of the probation officer’s work by the court (hourly minimum rates and average remuneration of property managers are helpful indicators).

In Austria, on the other hand, the remuneration of the probation officer is calculated on the basis of either the minimum rates for lawyers (if the probation officer is a lawyer) or the minimum rates for notaries (if the probation officer is a notary public). At the same time, the amount of the awarded remuneration varies significantly between specific Länder.

The similarity of the Polish and Austrian legal systems thus includes the overwhelming influence of the court’s discretion on the assessment of the value of the probation officer’s remuneration.