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Are you seeking theoretical knowledge, or have you found yourself in a situation where practical assistance would be beneficial? We have prepared basic information for you to better understand the entitlement known as the reserved portion. Do you want to check if you are entitled to a reserved portion, or perhaps you wish to avoid its payment? Are you wondering about the significance of a donation made by the testator or specific testamentary provisions? Regardless of your motivations, we encourage you to familiarize yourself with the knowledge that will help you understand your situation.
A reserved portion is defined as an entitlement held by individuals who have blood ties with the testator. This refers to heirs, namely children and their descendants (grandchildren, great-grandchildren), parents, and the spouse, if at the time of the testator's death, they were in a valid marital relationship. The term reserved portion is used when the testator omits these individuals during the division of the estate and bequeaths it to someone else or only to one (or some) of the aforementioned individuals. The entitlement to a reserved portion belongs to heirs who, in a given situation, would inherit a specific part of the estate from the testator. The claim for a reserved portion arises at the moment of the testator's death when they have not provided the entitled party with the due reserved portion through inheritance, a legacy, or a donation.
When discussing this topic, it is essential to answer precisely: what is a reserved portion? A reserved portion is exclusively a monetary amount. Therefore, it is not possible for a person entitled to receive a reserved portion to demand, for example, real estate or items. A reserved portion can be claimed from individuals who obtained rights to the estate in place of the heir. The role of the reserved portion is to compensate for the economic loss suffered by the heir, as under different circumstances, they would have received the inheritance. Since the only option is to obtain financial compensation, can you request the issuance of a specific asset that, for example, has sentimental value to you? Yes, but this requires the consent of the person authorized to pay the reserved portion to you. At the same time, you are obliged to waive your right to the reserved portion.
Is tax payable on a reserved portion? You are obliged to pay it if the amount of the reserved portion exceeds 9637 PLN. It is the same as the inheritance tax, which depends on the tax group. If you report this fact to the Tax Office within 6 months of receiving the reserved portion, you may be eligible for a tax relief.
You already know what it is, but are you aware of what percentage the reserved portion from parents amounts to? The entitled person is due half the value (½) of the inheritance share they would receive under statutory inheritance. Are there exceptions to this rule? A different amount of the reserved portion is due to:
a person who is permanently and completely unable to work (and was in such a state at the time of the opening of the estate),
a minor child of the testator, as well as a grandchild, great-grandchild, and further descendants (the child's age at the time of the opening of the estate is taken into account).
What is the reserved portion for the groups mentioned above? They are entitled to two-thirds of the value of the inheritance share. The exact value of the reserved portion is influenced by many factors, including the number of people who can claim it, the content of the will, the value of donations and specific bequests made by the testator before death. The financial and personal situation of the individuals entitled to the reserved portion is also very important. The court independently determines the value and composition of the estate for the purpose of determining the amount of the reserved portion. Who is taken into account during the calculations? In addition to statutory heirs, heirs deemed unworthy and heirs who have renounced the inheritance are considered.
Are you wondering who is excluded from the calculation of the inheritance share? When is the reserved portion not due? This group includes heirs who have been disinherited and those who have renounced inheritance. Considering the factors mentioned earlier, each person entitled to receive a reserved portion may ultimately receive a completely different amount. When can you claim a reserved portion from parents? You have exactly 5 years to raise a claim for a reserved portion from:
the date of opening the will (if inheritance occurs under the will),
the date of opening the estate (if the basis for the claim is donations or specific bequests).
In practice, this means that after 5 years from the dates indicated above, it is possible to raise a claim for payment of the reserved portion, but the person obliged to pay it may raise the defense of the statute of limitations, which will result in avoiding payment.
Are you wondering what the reserved portion for the siblings of the testator amounts to? The group of statutory heirs includes descendants, spouses, and parents. As you can see, the testator's siblings do not appear on the list – and not without reason. This is because siblings are not entitled to a reserved portion. The provisions of the law (Article 991 of the Civil Code) clearly and unequivocally indicate that the sister or brother of the testator is not entitled to a reserved portion. This applies even in situations where they had a close relationship or provided care for the deceased testator.
It is worth discussing another topic, which is the relationship between donation and reserved portion. A donation is added to the net value of the estate, i.e., assets from which the amount of debts (liabilities) has been deducted. In this way, the so-called substratum of the reserved portion is obtained, which in this case becomes the basis for calculating the value of the reserved portion. What does this mean in practice for the recipient of the donation? If the estate included in the donation has been exhausted, they must be prepared to accept a claim for a reserved portion from the statutory heir. It is worth adding information about which donations will be included in the base during calculations, as this does not apply to every donation. The following are not taken into account:
small customary donations in given relations (e.g., occasional gifts),
donations made by the testator more than 10 years prior to the opening of the estate to persons who are not heirs or entitled to a reserved portion.
It is also worth adding that when calculating the value of the reserved portion due to a descendant, donations made by the testator are not included if they did not have descendants at the time. Know that you have the right to demand a reserved portion from the person who received the testator's estate as a donation. What if you were omitted as an heir and want to demand payment of a reserved portion, while at the same time you received a donation from the now-deceased testator? In that case, the value of the reserved portion due to you is reduced by the value of the donation made.
Why is it worth addressing this topic as well? Life annuity contract and reserved portion – what connects them? It turns out that a life annuity contract protects the acquirer of the property from the obligation to pay a reserved portion. What does a life annuity contract entail? It is classified as a reciprocal agreement, meaning an agreement between two parties to perform certain obligations. An example? Parents transfer a house to their child in exchange for providing lifetime accommodation, maintenance, and arranging a burial at their own expense. The difference between a donation agreement and a life annuity contract is that the former is not subject to any conditions under which part of the estate would be transferred. In the case of a life annuity contract, actions are taken by both parties, i.e., a reciprocal agreement. Therefore, part of the estate (whether it is real estate or a sum of money) transferred under a life annuity contract is not included in the value of the substratum of the reserved portion. At the same time, the person who became the owner of the property, movable property, or sum of money under a life annuity contract is not obliged to pay a reserved portion to other persons. Therefore, it is worth precisely determining which agreement should be concluded to protect oneself from its consequences in the future. Often at this point, the topic arises: donation and reserved portion for siblings. If, for example, a house was transferred under a donation agreement to one child, the remaining children, i.e., siblings, have the right to raise claims for a reserved portion from parents.
A reserved portion will not be granted to a person deemed unworthy of inheritance or one who has been disinherited by the testator's will (we will elaborate on this topic shortly). It is also not due to individuals who have renounced inheritance and those who have rejected the estate. Who else is not entitled to a reserved portion? A spouse cannot demand its payment if a court judgment on divorce or separation has become final. The reserved portion is also not due to a spouse before the court's ruling if the testator filed for divorce due to the spouse's fault. Parents cannot demand a reserved portion if the testator left descendants, as well as natural parents whose child was adopted.
It is worth adding that the right to a reserved portion is granted exclusively to the first descendant of the testator. In practice, this means that a grandchild's demand for payment of a reserved portion will be unfounded if their parent is still alive. The exception is a situation where the parent has been disinherited. The case is different if the parent has renounced inheritance, as this also includes their descendants (however, it is possible to make other arrangements).
Can a person who has rejected the estate claim payment of a reserved portion? Yes, because rejecting an estate bequeathed in a will does not result in the loss of the right to a reserved portion. It also does not affect their descendants, who retain both the right to a reserved portion and the right to inherit.
The transfer of assets during lifetime can be done through a will, donation agreement, or life annuity contract. It is worth noting that the provisions of the will take effect only at the time of the opening of the estate, i.e., the death of the testator. There are situations where the testator wishes to protect the heir from the obligation to pay a reserved portion and decides to make a donation to them. However, this does not produce the desired legal effects, as the heir may bring a claim for payment of a reserved portion against the recipient. As mentioned earlier, an effective way to protect oneself from paying a reserved portion in the future is to conclude a life annuity contract. Additionally, agreements involving the transfer of real estate must be concluded in the form of a notarial deed under penalty of nullity. Furthermore, if the property owners were spouses, both must conclude a life annuity contract or a donation agreement – unlike in the case of a will, which is valid only when prepared by one person.
Disinheritance and reserved portion – are you wondering what the relationship is? An effective method of depriving statutory heirs of the right to a reserved portion is their disinheritance. The testator can do this only by including an appropriate provision in the will. As it turns out, merely stating the removal of the right to inherit is not enough. It is necessary to provide arguments and evidence that will serve as a basis for disinheritance in the eyes of the court – without this, disinheritance will not be effective. What situations are we talking about? Disinheritance may occur as a result of:
persistent conduct contrary to the principles of social coexistence against the will of the testator,
persistent and lasting failure to fulfill family obligations towards the testator,
committing a crime against the health, life, freedom of the testator, or committing an offense against their honor.
It should be remembered that disinheritance applies only to one person and does not extend to their descendants, who may claim a reserved portion if they did not receive the inheritance.
You now know what a reserved portion is and who is entitled to it. On a daily basis, we encounter both individuals whose situations are clear and easily resolvable, as well as those requiring extensive knowledge and experience. Therefore, it is worth seeking professional legal assistance if you are interested in finding the most advantageous solution. We are aware that adopting the right strategy and raising properly formulated claims, supported by evidence, increases the chances of success in court.
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