As mentioned in the article „Inheritance law – part II – acceptance of succession”, heir may accept the succession with unlimited liability for debts (direct acceptance), or accept the succession with limited liability for debts (succession under the benefit of inventory), or waive the succession. Waiver of succession may have different causes, as for example, negative attitude of the heir towards testator (devisor). The most common cause is, when the debts that burden the succession are so vast that they exceed the succession assets.
Waiver of succession in general
It is to be reminded that acceptance or waiver of share in succession attributable to the heir under the substitution can occur independently of the acceptance or waiver of share in succession that this heir acquire from another title, and also the heir may waive the attributable share in respect of increment and accept share attributable from the will. In addition, the heir that inherits in both the power of the will, and by law can waive the succession as testamentary heir and accept the succession as a statutory heir. Apart from these circumstances the heir may not partly accept and partly waive the succession.
The declaration in which the heir declares the waiver of succession may be submitted within 6 months since the day that he learned about the grounds of his heirdom, similarly to the declaration of acceptance of succession. The declaration of waiver of succession must be unconditional and definitive, as submission of such declaration under some conditions or with the deadline reservation is invalid. It also cannot be revoked. One and only exception of above rule is a situation in which the declaration has been made under error or threat. In such case the regulations concerning defects in declaration of intent are applicable with following changes: avoiding the consequences shall take place before court; the heir shall declare at the same time whether he accepts the succession or waives it. The heir, who under the influence of an error or the threat has not made any statement on time, may in the same way to evade the legal consequences of failure to observe the deadline. Avoiding the legal consequences of the declaration of acceptance or waiver requires approval by the court.
A declaration of waive or acceptance of succession may be made in front of a district court in which district the declarant lives or has domicile or before notary. Notary or the court will send immediately a declaration, with attachments to the inheritance court. The statement may be made in person of in writing with the officially certified signature.
If, before the expiry of that six-month deadline to submit a declaration of waiver of succession the heir died and has not made such a declaration, a statement may be submitted by his heirs. The deadline for his heirs may not be shorter than the deadline for submitting a declaration after the deceased heir.
The waiver of succession causes the heir is excluded from inheritance, as if unable to attend the opening of the inheritance (as if he had died prior to the testator). If the heir managed the succession assets, and then waived it, the relations between him and the heirs, who have instead come to inheritance, the provisions for the conduct of others’ affairs are applicable (art. 752 of the Civil Code and following).
In the case where there is no testamentary heirs and no spouse of the deceased, his relatives and children of the deceased’s spouse, entitled to inherit from the Act, the succession falls to last municipality of residence of the deceased as a statutory heir. If the last place of residence of the testator in the Republic of Poland is unknown, or his last place of residence lies abroad, the succession falls to State Treasury as the statutory heir. The State Treasury or the municipality does not submit the declaration and the succession is accepted with the benefit of inventory.
Harm to creditors
There are, in practice, situations in which the waiver of the succession by the heir will lead to the harm to its creditors, as the financial resources (succession assets) did not come to his property. If the heir waived the succession with the harm to his creditors, each and every creditor is entitled to demand that the waiver of succession was deemed ineffective against him under the provisions on the protection of creditors in the event of insolvency of the debtor. It is a claim in its essence corresponding with action pauliana (artivle 527 of the Civil Code and following). The demand for recognition as ineffective may be filed within the deadline of 6 months since the creditor became aware of the waiver of succession, but not later than three years after such waiver.