The heir can either accept the inheritance without limiting the liability for debts (simple acceptance), or accept the inheritance with limited liability (acceptance with the benefit of inventory), or reject the inheritance. The time limit for making a declaration about accepting or rejecting the inheritance is very short, since it is only six months from the day the heir became aware of the inheritance calling. Failure to submit a declaration by the heir within the 6-month period mentioned above is tantamount to accepting the inheritance with the benefit of inventory.
So what if we want to reject the inheritance after the statutory 6 month period?
Can an inheritance be rejected after 6 months?
In case the heir did not reject the inheritance within the statutory deadline of 6 months from the day he learned about the inheritance calling, he may reject the inheritance under Article 1019 of the Civil Code, however such a situation should be treated as an exception.
An heir may evade the effects of failure to submit the relevant declaration after the deadline of 6 months if the failure to do so was made under the influence of a mistake or threat. If these two situations occur, the heir may evade the legal consequences of the failure to meet the deadline.
Evasion of such legal consequences requires a declaration of rejection of the inheritance and approval of the above declaration by the Court.
Error as to the status of the estate or lack of knowledge of debts
A very common mistake in practice is the lack of knowledge of the heirs about the elements included in the inheritance and, at the same time, the lack of knowledge about the debts of the testator.
The law does not define the meaning of the word 'mistake’, however it should be stated that the mistake should be material and justify that if the heir had not acted under the influence of the mistake, he would have rejected the inheritance within the statutory deadline of six months. Claiming an error for trivial, insignificant reasons would lead to abuse of the institution of Article 1019 of the Civil Code.
The application of Article 1019 par. 2 of the Civil Code in conjunction with Article 84 par. 2 of the Civil Code may justify both a mistake of fact and mistake of law. A misconception of the heir about the state of the inheritance may refer to the very existence of inheritance debts and their amount may be treated as a mistake within the meaning of Article 84 par. 2 of the Civil Code justifying the application of the protection provided for in Article 1019 par. 2 of the Civil Code in conjunction with Article 84 par. 2 of the Civil Code. However, in order for such a mistake to be deemed a material mistake, it needs to be proved that the testator did not have knowledge about inheritance debts despite taking appropriate, possible actions aiming at determining the actual state of the inheritance. /Judgment of the Supreme Court of July 20, 2020, II CSK 100/19, LEX no. 3276264./.
If you want to evade the legal consequences of failing to submit a declaration on time, it is necessary to prove that the heir did not have any knowledge of the inheritance debts. It often happens that the heir did not maintain close contact with the deceased during the testator’s lifetime, the heir lived abroad or did not contact his family. The heir often only becomes aware of the existence of any debts when the creditors of the deceased initiate legal proceedings to determine the circle of heirs.
The assessment whether an error of heirs in the context of the application of Article 1019(2) of the Civil Code does not constitute a consequence of their failure to exercise due diligence should be made on the basis of the circumstances of each individual case and take into account the average state of legal awareness of the society. /Judgment of the Supreme Court of July 20, 2020, II CSK 100/19, LEX No 3276264/.
Error of law
It is also possible to plead an error of law. An 'error of law’ is understood as a misconception of the heirs regarding the law. It is difficult to plead a mistake of law as it contradicts the principle 'ignorance of the law harms’. A mistake in law can consist, for example, in the heir’s mistaken belief that the deadline for making a declaration about rejection or acceptance of the inheritance is longer than 6 months. In the case of an error of law, there must be a mistaken idea about the content of the law.
It should be remembered, however, that proving a mistake of law is not easy and, as each case must be interpreted individually.
What action to take?
As I mentioned above, in order to evade the legal effects one has to file a motion to the court for approval of evasion from the legal effects of failure to submit a declaration on inheritance rejection on time and at the same time for acceptance of the declaration on inheritance rejection. The inheritance court is competent in this case, i.e. the court of last habitual residence of the testator, and if his/her habitual residence in Poland cannot be determined, the court of the place where the inherited property or a part thereof is located (inheritance court). In the absence of the above mentioned grounds, the inheritance court is the district court for the capital city of Warsaw (Art. 628 of the Code of Civil Procedure).
At the hearing held, the heir will be required to declare whether he or she rejects the inheritance.
If the petition is accepted, the court shall issue an order approving the petitioner’s waiver of the legal consequences of failing to meet the deadline for filing a notice of disclaimer of the decedent’s estate.
Fees
The court fee for the application is PLN 100 and the fee for filing a declaration of rejection of the inheritance is also PLN 100.
Have you experienced a similar situation? Feel free to contact me.
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