Securing the inheritance in Poland – guardianship of the inheritance – selected information

Inheritance property may be protected before it is passed on to heirs.

What is the purpose of the guardianship of inheritance

The guardianship of the inheritance serves to protect the inheritance – it is therefore about the period of „interregnum” that will arise between the moment of the testator’s death and the moment of handing over the inheritance property to his heirs and is intended to maintain the inheritance property in its entirety and prevent the arbitrariness of some of the heirs.

Therefore, guardianship of inheritance is described by Polish law as „management of inheritance not covered”.

Thus, guardianship of the inheritance in Poland is one of the methods of securing the inheritance as property and can be established by a Polish court, at the request of the person concerned, or by the court acting on its own initiative, i.e. ex officio.

What regulations

It must be said right away that the regulation of inheritance guardianship is very complicated. The following apply to probation officers:

• ko­deks ro­dzin­ny i opie­kuń­czy:
  • provisions on guardianship – Title III Section III cro
  • guardianship provisions – Title III Section II of the Acronym, but only accordingly (pursuant to Article 178 § 2 of the Agronomy, if the provisions governing a given guardianship, i.e. when Section III of the Acropolis and the following provisions of the Code of Civil Procedure do not provide otherwise),
  • provisions on parental authority (on the basis of a referral under Article 155 § 2 of the Code, but only those provisions on guardianship that can be applied, and when the provisions referred to above do not provide otherwise),
• Code of Civil Procedure:
  • provisions on the administration of inheritance not covered – art. 666-668[1] of the Code of Civil Proceedings (which, moreover, in the field of management of inheritance property contain a reference to the management of real estate when enforcing pecuniary benefits),
  • provisions on the management of real estate when enforcing pecuniary benefits – Art. 933-941 CPC

These are just basic regulations. In specific matters (e.g. related to real estate), the probation officer has to deal with many other regulations.

Who is the custodian of the estate

Who will become the guardian of the estate depends on the decision of the court, because without its decision there is no guardianship of the estate. The law allows the appointment of a person unrelated to the family of the deceased as the guardian of the estate. In the application for the appointment of a guardian of the estate, the court can always suggest the direction of selection of the appropriate person, basing the application on the provision of Art. 149 § 1 cros.

Before accepting the inheritance by the curator, it is not known whether many hours of work and huge effort will be needed, or whether the guardianship of the inheritance will be exercised as if it did not exist at all. It depends mainly on the cooperation of the heirs with the curator and the cooperation of the heirs with each other and on the number of problematic issues, such as the unsettled ownership status of some elements of the estate.

The express consent of the person to take over the guardianship is not required to take guardianship (Article 152 of the Code), while courts or legal self-government bodies usually obtain the consent of the candidate for the guardianship before appointing the guardian. The courts issue a relevant certificate to him after taking guardianship.

Sometimes the courts have their own lists of candidates for probation officers and do not ask professional self-governments of advocates or legal advisers to indicate the appropriate person. Often, judicial assistants or apprentices act as custodians of the estate. In more difficult cases, they are rather lawyers or legal advisors, in easier cases, they are rather employees of the courts.

Sometimes the courts surprise and ask for consent to take over the function of curator of the estate under the pain of recognizing that the lack of response will be considered consent. Therefore, for security reasons, the candidate should always respond to the court’s letter.

Who is the curator on behalf of?

Guardianship of the estate is a case of statutory representation. And this is the representation of all heirs – they are actually represented by the curator of the estate,

despite the fact that intuition suggests that guardianship of an inheritance is about representing the inheritance, i.e. the property. However, it is always about representing the deceased. This construction corresponds to the traditional nomenclature: the curator of the estate acts as a representative of a specific person / persons who are heirs.

The estate, i.e. the property left by the deceased, does not have legal personality under Polish law, and therefore cannot have a representative. And that is why the curator acts on behalf of the heirs. Even when the estate belongs to the company. However, in fact, the subject of the inheritance are the rights attached to shares or shares, and not directly the company’s assets.

Therefore, it should be remembered that the curator is a statutory representative and in matters concerning inheritance, when submitting letters (e.g. to the court), the details of the custodian of the inheritance and the data of persons who, according to the curator or according to relevant acts (inheritance certification act, European certificate of inheritance, acquisition of inheritance or civil status certificates and inheritance assurances) are heirs.