The following article is a continuation of the first part. Click to go to it „Securing the inheritance in Poland – guardianship of the inheritance – part I”

The tasks of the curator and the curator

The guardianship of the inheritance is mainly about securing the assets left in the inheritance against loss of their value and obtaining possible benefits for the heirs.

In other words, it is about maintaining the entire inheritance property through the personal and property efforts of the probation officer and obtaining funds that will increase the value of the inheritance by, for example, pursuing claims, including before the courts.

The minimum duties of the probation officer are set out in the Code of Civil Procedure (Article 667 § 1 of the Code of Civil Procedure): the probation officer should try to clarify who the heir is, notify the heirs about the opening of the inheritance, and the succession court should inform the inheritance court about the result of the efforts and notification of the heirs.

Inheritance protection should generally be financed from the estate’s assets. The method of financing inheritance protection from the income of the inheritance estate is also specified in the Code of Civil Procedure (Articles 940 and 941 of the Code of Civil Procedure).

When there is easy access to funds – a bank account, a payment card, access codes to funds are known, or the inheritance brings income, the inheritance court may even order the use of the income. If access to the inheritance property is difficult, the curator may sell inheritance items (movables), but only to the extent of the so-called ordinary management, i.e. in such a way as to imitate everyday efforts to keep all assets, without major asset transfers.

If there is a need to sell a larger part of the items belonging to the inheritance (movable property) or to sell real estate, the probation officer will need the consent of the inheritance court that appointed him – in any case exceeding the ordinary administration of the inheritance.

On a semi-annual basis, the curator should submit reports on the administration of the inheritance, in which he will present his actions and prove them with the attached documents. The court may release the curator from the last report, but this depends on the state of the inheritance management.

Settlements

Exercising guardianship of an inheritance involves expenses. The curator covers them from the inheritance property or from his own property, if these expenses become necessary.

It should be remembered that the probation officer cannot collect remuneration from the inheritance property until it is specified in the court decision on the management costs.

In this case, an application should be made to the inheritance court, unless the guardian’s efforts – financial and personal – are not great, and the guardianship implements the principles of social coexistence – in a word, when due to the social sense of justice (not because of the financial shortcomings of the heirs), awarding remuneration by the court would be unfair (e.g. when the probation officer is a person close to the heirs, is entitled or obliged to alimony towards the heirs, the relations between the heir and the testator are bad) (Article 179 of the Code).

On the other hand, the outlays and expenses incurred by the probation officer and related to the administration of the estate (Art. 163 § 1-3, Art. 162 § 3 of the Code of Civil Procedure, Art. 939 § 1 of the Code of Civil Procedure) should be returned to him by the heirs on the basis of an application, supported by a list of settlements and documentation (e.g. bills). If the heirs are unable to reimburse expenses, outlays or to pay the guardian’s remuneration, the court awards reimbursement of expenses or outlays or remuneration from the State Treasury (Art. 179 § 1, Art. 163 § 1 in connection with § 3 in connection with Article 162 § 3 of the Code).

In specific civil cases, due to the statutory representation of heirs by the probation officer, the court awards remuneration to the probation officer based on the attorney’s fee.

End of tutelage

The guardianship of the inheritance is permanent – until it is revoked by the court, it lasts (Article 180 § 1 of the Code). A participant in the inheritance proceedings may at any time request its repeal or the court may repeal guardianship on its own, ex officio.

A justified request of a participant in the inheritance proceedings or the probation officer himself may lead to its termination, for example when:

• loss of the security purpose (e.g. it turns out that the property is so durable and secured, or of such low value that it does not need to be protected),
• taking over the inheritance by the heirs (which should be certified by the taking over protocol signed by the curator and the heirs established by the notary public in the inheritance certification or European certificate of inheritance or by the court in the decision on or confirmation of inheritance acquisition),
• establishing a court deposit (when it is not known who the heir is despite the inheritance proceedings, or when the heirs refuse to take over the inheritance – for this, it should be cashed, with the court’s consent, of course; otherwise, the curator will have to pay an advance payment for the property caretaker’s remuneration, possibly in the amount of a few thousand zlotys), or
• resignation of the probation officer from probate (which, of course, the court must agree to, although it is usually routine).

With the termination of guardianship, the curator will receive remuneration from the heirs or the court, and reimbursement of outlays and expenses.