As the well-known saying goes, the only certainties in life are death and taxes. A separate entry on our blog may be devoted to death tax (i.e. inheritance and donation tax 😉). Today, however, I would like to draw the readers' attention to another, also important aspect related to death, euphemistically referred to in inheritance law as "opening of the inheritance".
On November 15, 2023, the amendment to Art. 669 of the Code of Civil Procedure (CCP). This provision specifies the group of persons who should be summoned to the hearing on the confirmation of inheritance. Before the amendment, the provision indicated that these were persons "who may be considered as statutory and testamentary heirs”, however, without indicating a clear limitation in this respect. However, the circle of statutory heirs is very wide, which may have escaped the legislator's attention during work on the Code of Civil Procedure. The statutory heir may be, for example, the son of an aunt, i.e. a person quite distantly related to the testator. Therefore, due to the statutory obligation to indicate the participants of the proceedings in the application for confirmation of inheritance, the initiation of the proceedings was often preceded by a laborious determination of who in a given situation could be entitled to the status of a statutory heir, who is alive and who died and whether he left any offspring. In the absence of cooperation from the deceased's family, this task could be very difficult and sometimes even impossible.
However, in the current legal situation, the legislator stipulated that it is obligatory to summon only the spouse, descendants (children, grandchildren, great-grandchildren, etc.), adopted children, parents and siblings. The other heirs should be summoned only if they are known to the court. Thus, the legislator limited the need for pre-trial detective play to a reasonable extent.
Additionally, the legislator in the first sentence of Art. 669 stipulated that potential heirs should be summoned "according to the order of inheritance". This reservation aims to limit the situation in which, for example, the testator's surviving siblings apply to summon their children as participants in the proceedings, even though these persons could only be considered as heirs if their parents rejected the inheritance and the inheritance is based on a will. The solution adopted by the legislator should be assessed as correct, because if it were necessary to summon absolutely all potential heirs, the commune of the testator's last place of residence and the State Treasury, as the so-called last chance heirs.
To sum up, the changes introduced in Art. 669 of the Code of Civil Procedure should be assessed positively. There are many indications that the initiation and, consequently, completion of this type of proceedings will be more efficient. We encourage you to seek help from our office also in inheritance matters.
PS
As is usually the case, when introducing certain changes, the legislator did not notice what he should have noticed and did not take care to harmonize the provisions regarding the judicial and notarial procedure for confirming the acquisition of inheritance. Despite the limitation of the group of persons summoned by the Court to participate in the hearing, in accordance with Art. 95b in connection with Art. 95aa of the Notarial Law, the notarial inheritance protocol is still prepared with the participation of the notarial inheritance protocol everyone persons considered as statutory and testamentary heirs, as well as persons for whose benefit the heir made the so-called debt collection records. Thus, the notarial procedure for certifying inheritance, which is intended to relieve the burden on the courts, sometimes appears to be less attractive than the court procedure, contrary to the legislator's intentions. The main advantage of the notarial mode of certifying inheritance is the lack of need to wait for a hearing to be scheduled. However, if we do not have a detailed family tree of the testator, it may turn out that, despite this advantage, obtaining court confirmation of inheritance will be faster and simpler.
author:
Przemysław Apostolski – legal advisor
This entry contains general information about the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend seeking legal advice from our law firm.