Legitime – what is it anyways? The old saying goes that if you don’t know what it’s about, it’s definitely about money. The same is true for legitime. Here you’ll learn:
- How much legitime you are entitled to
- Who is entitled to legitime
- How to calculate legitime
- How to write a legitime petition?
You will also learn that in Polish you have the right to zachowek (legitime) and not zachówek. There is no zachówek in the correct Polish language. There is only zachowek.
If you feel that something went wrong and you did not receive as much inheritance as you should have, a compulsory share may be the answer to these doubts. If your parents, your wife or husband, and in some cases also your children, have distributed their property to your detriment, a legitime will allow you to repair this harm.
I invite you to read!
If you have any questions or doubts, please contact me – I will be happy to help, arrange all formalities for you and together we will try to obtain the highest possible legitime.
What is legitime?
Things don’t always go as they should in the family. Especially when the property is involved. However, Polish inheritance law takes care of the deceased’s relatives even when he or she did not want to take care of them.
When a testator, in a will or through endowments made during his or her lifetime, transfers all or most of his or her assets to other people, a problem arises. A problem for the closest to the testator, who were omitted. However, it can be solved. To do this, you should sue the people who inherited the property (or received it as an endowment) and demand from them the payment of a specific amount of money, called the legitime.
You can only demand a sum of money from the heir who received your part of the inheritance. It is not possible to demand that this heir hand over the inherited items that constitute the estate. Legitime always has the form of money.
The situation is slightly different when the testator – during his or her lifetime – distributed his or her assets through donations. Then the compulsory share can be demanded from the recipient. However, he may be released from the obligation to pay the legitime by handing over the endowed item. Therefore, if there is nothing (or very little) left in the inherited assets because the testator distributed his assets to other people, the situation is not hopeless. Appropriate legal procedures will allow you to regain what may seem lost.
Who is entitled to legitime?
The descendants, spouse and parents of the testator who would be entitled to the inheritance under the law are entitled, if the entitled person is permanently incapable of work or if the entitled descendant is a minor, to two-thirds of the value of the inheritance share that would fall to him in the event of statutory inheritance, and in other cases – half of the value of this share. That’s what the regulation says… But what does it actually mean?
When you decipher this legal puzzle, you will come to the following conclusions. You can always apply for legitime from your parents and compulsory share from your husband or wife. You can apply for legitime from your grandparents only if your parents (and your grandparents’ children) will not be liable to inherit (e.g. because they are deceased). You only have the right to a legitime after your children if these children did not have their children. Even if you were the best sister/brother, you will never be entitled to legitime after siblings.
Who cannot demand legitime? Excellent question! Legitime cannot be claimed by persons who are excluded from inheritance as if they were dead at the time of opening the inheritance. This group includes people who:
- Renounced inheritance,
- Were deemed unworthy of inheritance,
- Rejected the inheritance,
- Renounced their right to legitime,
- Were disinherited;
A spouse who is separated from the deceased testator is also not entitled to legitime. If, during his or her lifetime, the testator filed a petition for separation or divorce due to the fault of his spouse and he/her was right, the guilty spouse is also not entitled to legitime.
How much is legitime?
The amount of the legitime is a fundamental issue. And higher mathematics as well. To correctly calculate your legitime, you first need to determine what fraction of the property you would inherit if statutory inheritance were involved. For example, if you inherit from your deceased father, and your mother and brother also belong to the inheritance, your share will be 1/3.
The established share should be multiplied by 1/2 or 2/3. A higher fraction is due to those who at the time of the testator’s death were minors or permanently incapable of work. Lower is due to everyone else liable for legitime.
If we stick to the example of inheritance jointly with your brother and mother, and assuming that you are an adult and capable of work, the formula for calculating the fraction of the share in your case will be as follows: 1/3 x 1/2 = 1/6.
The fraction determined in this way should be multiplied by the so-called legitime substrate. This consists of the pure value of the inheritance plus endowments added to the inheritance. The pure value of the inheritance is the assets of the inheritance less liabilities (assets reduced by inheritance debts). Thus, you receive the amount due to you, for which you can apply to the court.
If the net value of the inheritance is PLN 300,000 and the fraction due to you is 1/6, the formula for the legitime is as follows:
1/6 * 300,000 = PLN 50,000
PLN 50,000 is your legitime – it’s your money.
But you have to be careful. The person from whom you are demanding legitime may try to reduce the amount of it due to you. For example, if the testator made a specific bequest or an endowment to you, their amounts are included in the legitime due to you. This is one of the ways in which an heir or recipient may try to deprive you of your money.
There is no impossible situation. If you are in doubt, it’s better to consult this. There is almost always a way out that can save your money.
Disinheritance vs. legitime
Disinheritance is nothing more than the act of depriving of the right to legitime. Inheritance law provides for specific situations in which the testator may deprive his or her descendants, spouse and parents of the compulsory share in his or her will. Disinheritance may take place if the person entitled to the legitime:
– Persistently acts in a manner contrary to the principles of social coexistence, against the will of the testator,
– He/she committed to the testator or one of the persons closest to the testator intentional crime against life, health or freedom or gross insult of honor,
– Persistently fails to fulfill family obligations towards the testator;
The reason or reasons for disinheriting the person entitled to the legitime should result from the content of the will. It is worth knowing that the testator cannot disinherit the person entitled to the legitime if he has forgiven him. If at the time of forgiveness, the testator did not have legal capacity (e.g. he was incapacitated), forgiveness is effective when it occurred with sufficient discernment.
You can also fight against disinheritance. So if someone has disinherited you for no reason, try to challenge the will. If the testator was not right, you should be able to win
Legitime vs. endowment
Situations are also possible in which the testator transfers all his assets or a significant part thereof to other persons who are not entitled to the legitime, while still alive as an endowment. If you have been deprived of all or part of the inheritance property in this way, inheritance law provides for the possibility of protecting your interests. In such a case, you can demand this legitime from the recipient.
This kind of legitime from the endowment will allow you to recover at least part of what you are owed. A similar solution is provided when the testator disposes of the property through a specific bequest. Even then you can fight for what belongs to you!
If amicable attempts to obtain a legitime prove ineffective, the only solution is to take the case to court. Depending on the value of the legitime, you must file a legitime petition with the district court (if the value of the legitime does not exceed PLN 75,000) or the district court (if the value of the legitime exceeds PLN 75,000).
The territorial jurisdiction is the court where the testator had his or her last place of habitual residence. If his place of habitual residence in Poland cannot be determined, submit a legitime petition to the court of the place where the inherited property or part of it is located.
A lawsuit regarding legitime does not differ from other lawsuits filed in cases involving the payment of monetary receivables. Therefore, it should precisely specify the plaintiff (here the PESEL, or personal identification number should also be indicated) and the defendant, providing current addresses for service.
The statement of claim involves specifying the amount you want to obtain. The justification for the claim should, in turn, indicate who is the heir, who is the testator, and who is entitled to the legitime. In this part of the claim, the requested amount must also be fully justified, i.e. describe what was included in the inheritance and calculate the appropriate fraction in accordance with the principles described above.
To handle the matter efficiently, collect the required documents. Above all, these include:
– A court decision confirming the acquisition of inheritance or a notarial deed certifying inheritance,
– Information about the assets left by the testator (land and mortgage register numbers of real estate, property valuation reports, information about movable property, e.g. the testator’s car, information about savings, information about companies in which the testator was a partner, etc.),
– Civil status records which will indicate your relationship or affinity with the testator (birth certificate, marriage certificate);
If you don’t know where to start looking for the necessary documentation, you can entrust it to a law firm. This will allow you to save time and obtain the rightful share faster.
How much does a legitime case cost?
A legitime case costs the same as any other money case. For the court to recognize your lawsuit, you must pay 5% of the amount you are demanding (i.e. 5% of the legitime) to its account. If you win, your opponent will return this amount, including the legitime.
If you are unable to cover these costs, it does not mean that the court doors are be closed to you. By attaching a statement about your family status, assets, income and sources of income (a template form can be found in every court) to the lawsuit , you can apply for exemption from court costs (i.e. the lawsuit fee and the costs of any experts appointed in the case). On the same basis, you can apply for the appointment of a public attorney for yourself. Then you won’t pay a penny for his services.
However, an important note here – if you lose the case, you will have to reimburse the costs incurred by your opponent (e.g. the costs of appointing a lawyer). The institution of exemption from court costs does not exempt you from the need to reimburse the costs incurred by your opponent.
If you want to choose a lawyer yourself and can bear the costs associated with it, you need to know two things. Firstly, the lawyer’s remuneration results from the regulations and depends on the value of the subject of the dispute (i.e. the requested amount of the legitime). For example, if the compulsory share is worth PLN 50,000, the minimum attorney’s fee is PLN 4,800. Secondly, when and how settlements will take place depends only on you and your lawyer.
Finally, good news: if the lawyer is effective and wins the case, his fee (like other court costs) will be covered by your opponent. If you are right, the legitime case will cost you only the time.
Legitime vs. statute of limitations
Beware! Like any property claim, the claim for legitime is subject to a statute of limitations. If you’re late – you lose. Your legitime claims expire at the passage of five years from the announcement of the will. If there was no will and the testator disposed of his or her assets during his or her lifetime – through donations – the claim expires after five years from the opening of the inheritance (i.e. the testator’s death).
If the decision has been made and you want to obtain compulsory share – do not wait. If you can’t decide, seek advice. Feel free to contact me.
Legitime is a right that must be exercised. Knowledge of this right allows you to quickly determine who is entitled to the legitime and indicate what to do to ensure that the legitime case is successful. Experience allows you to obtain a higher legitime and do everything to keep the tax on the legitime in your pocket. Find out how inheritance law can work to your advantage. Fight for justice – for you.