Debt inheritance can be a problem. The widespread taking of bank loans or loans from other lenders, combined with the often limited knowledge of heirs about the debts of the deceased and the principles of inheritance law, often results in the full liability of heirs for the repayment of such debts.
Silent acceptance of the inheritance.
General rules of liability for inheritance debts on the example of a loan taken by the creditor, I presented here: Loan and death of the borrower. As a reminder, I will write briefly that the responsibility for inheritance debts depends on the manner in which the heir accepted the inheritance. Rejecting the fall does not have to pay off debts in general. By accepting a drop directly, he bears responsibility for undue debts without restrictions. He is responsible for repaying them with all his property and property of the deceased who inherited it. Limit your liability for inheritance debts by accepting a decrease from the so-called the boon of inventory. When he does, he is responsible for paying the debts of the testator up to an amount that is equal to the value of the inheritance he inherited. The heir then does not answer for inheritance debts exceeding the value of the inheritance.
Declaration on the acceptance of the heir’s inheritance should be submitted within 6 months from the moment when he learned about the appointment to inheritance, whether based on a will or on the basis of the act. He can do it in court or at a notary.
If he does so within this period, according to the current regulations ( Article 1015 of the Civil Code), fiction is accepted that he silently accepted the inheritance. Thus, he will be responsible for inheritances without restriction. And this is exactly how it is described in the media, a trap in which many heirs fall in, not knowing that passivity can have far-reaching consequences for them. Unlimited liability for inheritance debts with a silent acceptance of the estate is now the rule. Restriction under the law of liability for inheritance debts in such situations are exceptions. The law on inheritance currently provides for three such exceptions. They apply to:
- people who do not have full legal capacity;
- persons for whom there is a basis for its complete incapacitation;
- legal persons.
That is, if on behalf of such heirs within 6 months no declaration of acceptance of the inheritance is made, it is assumed that the fall took the benefit of the inventory, and thus with limited liability for inheritance debts. Persons who do not have full legal capacity are minors, ie persons under 18 years of age and incapacitated persons.
At the same time, one must also remember about the principle that if one of the heirs accepted a fall with the benefit of the inventory, and the others did not submit any statement on time, it is believed that they also accepted the decrease in the same way. In such situations, the benefit of the inventory extends to other heirs.
Lack of knowledge about the state of decline may be considered a material error.
The default construction of a simple acceptance of a decline in the passive behavior of the heir induces more and more controversy, despite the fact that it has been in operation since the beginning of the Civil Code, ie for nearly 50 years.
Recently, the Supreme Court, in connection with the case before it, issued a decision favorable from the point of view of people who had no knowledge of the inheritance, received it in a straightforward way, and later learned about inheritance debts. The Supreme Court ruled that:
Ignorance of the heir on the state of inheritance despite the appropriate actions taken, can be considered a material error (Article 1019 § 2 of the Civil Code in relation to Article 84 § 2 of the Civil Code) – Supreme Court decision of 5 July 2012, IV CSK 612/11.
The case involved the fact that the deceased entrepreneur did not leave the property, so his heirs, which were the parents and sister did not make declarations of acceptance of the inheritance. They silently accepted the fall of the deceased. However, they did not know about bank loans that he did not pay.
After 2 years, the bank (creditor) initiated the proceedings on finding an inheritance (the inheritance law creates such a possibility). With this bank, the heirs managed to make a settlement. Some time later, with another request, another bank appeared, as it turned out that there was another loan that was not repaid by the deceased. Heirs appealed to the court with a statement about the evasion of the effects of the silent acceptance of the inheritance. They also asked to take advantage of the possibilities of inventory. They lost in the district court. Similarly in the county court. As a result of the cassation filed, their case ultimately reached the Supreme Court, which considered the cassation for the benefit of heirs, considering that in the circumstances of this case it was possible to speak about the error of heirs. Nevertheless, the Supreme Court noted that if the heir rely on the error, he should show that within 6 months from the day he learned about the appointment to the inheritance until the silent acceptance of the inheritance, he took steps to determine what constitutes the inheritance. In the case at hand, the parents of the deceased entrepreneur checked his documents after his death, but they did not find credit agreements or other documents indicating debts to the banks.
The reputation of inventory at the silent fall party for everyone?
The problem of full responsibility for inheritance debts in the case of so-called the silent acceptance of the fall was already noticed before. Along with the development of the financial market in Poland, it has become more and more important.
In the draft of the new Civil Code, on which the Codification Commission is working, as a principle, it is proposed to adopt the principle of limited liability for inheritance debts in the event of a silent acceptance of inheritance. However, to accept this inheritance law may take place earlier. Currently, at the initiative of the deputies of one of the opposition parties, work is underway on the amendment of art. 1015 of the Civil Code and the introduction of a solution consisting in the fact that the lack of a declaration of the heir in the planned 6-month period will result in the acceptance of the estate with the benefit of the inventory, i.e. with limited liability for inheritance debts.
If such a rule is introduced, the challenge will certainly be the issue of general inventory compilation, in order to determine what is included in the inheritance, what is the value and what debts the deceased left behind. Making an inventory of the inventory belongs to the court bailiff who performs the relevant court order in this regard.
On 18 October 2015, the Act of 20 March 2015 amending the Civil Code and certain other acts (Journal of Laws of 2015, item 539) amending the effects of the silent acceptance of the inheritance came into force. You will read about it here: “Silent acceptance of inheritance and debt inheritance – changes”. The principles described above apply to inheritances opened before 18 October 2015. To the inheritances left by those who died that day or later, the new rules related to the tacit acceptance of the inheritance are applied.