Can a foreigner make a last will and testament in Poland?

Making a will in Poland – Introduction

Inheritance is an important element of civil law, regulating how property is transferred after a person’s death. Making a will allows each person to decide for himself or herself to whom his or her property will fall, rather than relying on the default rules of statutory inheritance.

For those living outside Poland or with assets in another country, making a will can be of particular importance. Failure to make proper provisions can lead to legal difficulties, misunderstandings between heirs and even unexpected tax consequences. Foreigners who live in Poland and own real estate or other assets here may wonder whether they have the right to make a will under Polish law and whether it will be valid both in Poland and in their home country.

This brings us to a key question: Can a foreigner make a will in Poland and what are the rules for its validity? In this article, we will take a look at the applicable laws, inheritance law options and the practicalities of a will drafted by a foreigner.

Legal basis for making a will in Poland

In Poland, issues related to wills are regulated by the Civil Code. These regulations specify who can make a will, what formal requirements it must meet and what are the permissible forms of making a will. An important document regulating inheritance in the international context is EU Regulation No. 650/2012, also known as the Inheritance Regulation, which is in force in all European Union countries (except Denmark and Ireland).

Who can make a will in Poland?

According to Polish law, a will can be drawn up by any person with full legal capacity, that is:

• A person of legal age (18 years of age or older) or one who has previously come of age (e.g., through marriage),
• A person who is not incapacitated (neither partially nor completely).

Making a will is a personal act, which means that it cannot be made by an attorney or on behalf of another person. The will must be written personally by the testator.

Types of wills in Polish law

In Poland, the two most common forms of wills are:

• Handwritten (holographic) will – to be valid, it must be entirely handwritten, signed and dated. It cannot be made in the form of a computer printout or audio/video recording.
• Notarial will – drawn up by a notary in the form of a notarial deed. It is the safest form of will, as it eliminates the risk of formal errors and minimizes the possibility of contestation.

Each of these forms of wills has certain formal requirements, failure to comply with which may result in its invalidity.

Possibility of drafting a will by a foreigner in Poland

In the case of foreigners who have assets in or reside in Poland, the question arises whether they can effectively write their last will under Polish law.

Can a citizen of another country make a will in Poland?

Yes, a citizen of another country can make a will in Poland, provided that he meets the general requirements provided by Polish law. This means that he must have full legal capacity, the will must be drawn up in one of the permitted forms (e.g., handwritten, notarized).

There is no requirement that the foreigner have a permanent residence in Poland – it is sufficient that the will be made on its territory in accordance with Polish regulations.

However, the question of the applicable law that will apply to the inheritance is crucial.

Choice of inheritance law

The inheritance of property from a deceased person is governed by the rules of a particular legal system. For foreigners, the key issue is the ability to choose which law will apply to their inheritance.

Under EU Regulation 650/2012, which is in effect in most countries of the European Union (including Poland), a person making a will can independently choose the inheritance law of his or her country of citizenship instead of the law of the country where he or she lives.

This means that:

• A foreigner living in Poland may indicate in his or her will that his or her inheritance will be dealt with according to native law.
• If he does not make such a choice, the law of the country where he had his last habitual residence will apply by default (i.e. Polish law, for example, if he lived in Poland).

The choice of law must be expressly written in the will, otherwise the law of the testator’s place of residence at the time of death will apply.

Practical consequences of choice of inheritance law

The decision on the choice of inheritance law has important consequences, as different countries have different regulations on:

• Statutory succession, that is, who inherits and in what order,
• A reserved share (retainer), which in some countries (e.g., Poland) is entitled to certain persons regardless of the content of the will,
• disinheritance possibilities, which are stricter in some jurisdictions than in others,
• form and validity of the will, as some countries have stricter requirements for drafting it.

The choice of native law may be beneficial for those who wish to avoid the restrictions of Polish inheritance law (e.g., the obligation of close relatives to pay a retainer).

The form of a will versus its validity

For a will to be valid, it must meet certain formal requirements under Polish law. For foreigners, the key issues are whether they can make a will in a foreign language and whether the intervention of a notary is necessary.

A handwritten will in Poland – can it be made in a foreign language?

A handwritten will is valid in Poland if it meets the following conditions:

• it was entirely handwritten by the testator,
• it is signed by the testator,
• and it contains the date of drafting (although its absence does not always render it invalid).

Importantly, Polish law does not prohibit the drafting of a handwritten will in a foreign language. However, if it is executed, a sworn translation into Polish may be necessary, which can lead to difficulties of interpretation. Therefore, it is advisable to draw up a will in Polish or use the form of a notarial deed.

Notarial wills in Poland – the role of the notary and the need for translation

A notarized will is the safest form of drafting a will, especially for foreigners. Its drafting takes place in front of a notary, who ensures its legality and eliminates the risk of formal errors.

If the foreigner does not speak Polish, the presence of a sworn translator is necessary to mediate the process of drawing up the will. The notary drafts the document in Polish, but the testator may also receive a version translated into his or her language.

The advantage of a notarized will is that it is more resistant to challenge, as the document has official force. In addition, a notarized will can be registered in the Notary Register of Wills, making it easier to find after the testator’s death.

What provisions can a will contain in Poland?

A will may contain various provisions, including:

• Appointment of heirs, i.e. naming the persons who are to inherit all or part of the property,
• A legacy bequest, which is the transfer of a specific object (such as real estate) to a specific person,
• A simple bequest, i.e. a disposition whereby the testator obliges the heir or legatee to give a specific financial benefit to another person, such as a sum of money
• An inheritance order, in which the testator obliges the heir or legatee to perform a specific act, but without establishing a specific creditor who could enforce the obligation,
• Disinheritance, which is the exclusion of someone from the right to a retainer,
• Establish an executor of the will to see to its execution.

Validity of a will made in Poland in another country

Can a will made in Poland be recognized as valid in another country?

Yes, a will made in Poland may be considered valid in another country, but this depends on several factors, such as

• international regulations,
• the inheritance laws of the country in question
• and the form of the will.

International regulations and recognition of wills

In the countries of the European Union, EU Regulation 650/2012, which introduces uniform rules for cross-border succession, is crucial. This means that:

• A will made in Poland may be recognized in other EU countries if it meets the formal requirements of Polish law,
• if the testator has chosen the law of his nationality, the inheritance will be processed according to that law, even if the will was drawn up in Poland,
• You can use the European Certificate of Succession, which facilitates the recognition of succession rights in various EU countries.

Will a will be valid in countries outside the EU?

For countries outside the EU, the rules for recognizing wills may vary depending on the laws there. However, there are international conventions that help with the recognition of wills, such as:

• The 1961 Hague Convention on the Form of Wills, which recognizes wills as valid if they are made in accordance with the law of the place where they were drawn up, the nationality or residence of the testator, and, with respect to the property included in the estate, the place where they are located.
• Bilateral international agreements between Poland and other countries that may facilitate the recognition of wills.

Some countries may require additional authentication of the will (e.g., certified translation, legalization of the document or apostille).

Effect of the form of the will on its recognition

The form of a will is crucial to its validity abroad. A notarized will is most often recognized in other countries, especially in the EU, because it is in official form and meets the highest legal standards. To avoid problems, therefore, it is recommended that a will be drawn up in notarized form.

Can you have multiple wills in different countries?

It is possible to make several wills in different countries if a person has assets in several countries. However, it is important that such wills be consistent and legal to avoid legal conflicts and the invalidation of any of them.

Importantly, there is no legal prohibition against having several wills, as long as:

• Each of them relates to a different asset located in the country,
• Wills do not contradict each other (e.g., they do not cancel each other or do not concern the same asset),
• take into account international succession laws, such as EU Regulation 650/2012 in European Union countries.

In addition, if someone has assets in different countries, he or she can appoint different heirs in each country to specific property located in that country. To avoid disputes, wills should specify precisely what assets are subject to their provisions.

At the same time, instead of creating several wills, it is possible to indicate in one document that the entire inheritance is to be governed by the native law (if the person comes from a country whose law suits him better). This is possible in accordance with EU Regulation 650/2012.

Taxes and inheritance obligations for foreigners in Poland

Inheritance taxation for foreigners in Poland

In Poland, inheritances are taxed according to the rules set forth in the Inheritance and Gift Tax Law. For foreigners, the same rules apply as for Polish citizens, but the nationality of the heir and international agreements on avoiding double taxation are important .

Inheritance taxation depends on the value of the inherited property and the degree of relationship to the testator. Heirs are assigned to one of three tax groups:

• Group I (immediate family: spouse, children, grandchildren, parents, siblings),
• Group II (extended family: aunts, uncles, cousins),
• Group III (unrelated persons).

If the heir is a citizen of another country, he may be subject to double taxation – both in Poland and in his country of residence. It is worth checking whether there is a double taxation treaty between Poland and the country of the heir.

Inheritance tax exemption for foreigners in Poland

Citizens of other European Union (and EEA) countries can enjoy the same exemptions as Polish citizens. This means that if a foreigner inherits from a member of his immediate family and reports this fact to the tax office on time, he will not pay tax.

For non-EU citizens, different rules may apply, depending on international agreements. In some cases, it may be necessary to pay tax in both Poland and the heir’s country of residence.

Obligations related to inheritance of property in Poland by foreigners

If a foreigner inherits property in Poland, then must meet certain legal and tax obligations:

• Report the inheritance to the tax authority – heirs in tax group I have six months to report the inheritance in order to take advantage of the exemption.
• Obtaining a declaration of inheritance – a foreigner must obtain a court order or a certificate of inheritance from a notary public to formally become the owner of the property.
• Transfer of the property to the heir – if the inheritance includes the property, it is necessary to make an entry in the land register.
• Inheritance tax payment – if tax is due, the heir must pay it by the deadline set by the tax office.

Summary and practical tips

Key tips on drafting a will by a foreigner in Poland:

• A foreigner can make a will in Poland – either a handwritten will or a notarized will.
• A will can be drawn up in a foreign language, but in practice it is recommended that it be written in Polish or in notarized form to avoid problems of interpretation.
• It is possible to choose native law instead of Polish law in a will, which can be crucial in case of differences in inheritance law.
• A will made in Poland may be recognized in another country, but it is worth checking international regulations and consulting a lawyer.
• Inheritance is subject to Polish taxation, but in certain situations close relatives may benefit from tax exemption if they report the inheritance within 6 months.

Recommendations for those looking to secure their assets:

• If you have assets in several countries, make sure your will does not cause legal conflicts – you can make one will covering the entire estate or separate wills in different countries.
• Consider the choice of applicable law – if you want your inheritance to be dealt with under the laws of your home country, make this clear in your will.
• A notarized will is the safest option because it minimizes the risk of mistakes and inheritance disputes.
• Ensure that your will complies with international regulations, especially if you own property or assets in different countries.
• Think through tax issues – if the heir lives outside Poland, check whether he or she will have to pay tax in the country of residence as well.

Summary

Making a will by a foreigner in Poland is possible and legal, but requires consideration of both domestic and international laws. It is advisable to use the services of a notary and a legal consultation with a lawyer specializing in inheritance law to avoid future problems with inheritance, taxation and the validity of a will abroad.