Managing trusts and tax

Polish domicile with UK assets

The deceased had property and cash assets in both Poland and the UK. The estate in Poland had been dealt with but the husband needed assistance with claiming assets in the UK. The value of investments held by the deceased meant that a Grant of Representation from the Court in England and Wales would be required before those assets could be released.

A handwritten Will had been left by the deceased. It was written in Polish and formulated according to Polish Law. As well as her husband, the deceased had left behind a young daughter.

In cases of this type, the first point to establish is the domicile of the deceased. This can be a complicated area of law. Broadly, the factors to consider are the domicile of origin, the length of time spent in any new country, any evidence of intention to acquire a new domicile, the regulatory of visits back to the country of origin and the retention of property in that country. In this case, the circumstances indicated that the deceased’s Polish domicile of origin had been retained up to her date of death.

It was then necessary to obtain from the Polish Court a certified copy of the Will which had been lodged with them and also a document issued by the Court and known as the ‘Postanowienie’ or ‘Decision’.

There is no recognisable, formal equivalent of a Grant of Probate in Poland. However, the Court does ratify the terms of the Will and can make a judgment on the devolution of property where there is uncertainty. For example, in our case the Will had made a series of gifts of specific property but had remained silent on what should happen with any remainder of property (what we would call the “residue”). In particular, there was no mention of what should happen to the property situate in England and Wales, presumably as this had been acquired after the will had been drafted.

The Polish Courts can issue a decision based upon the general tenor of the Will or apply the Polish rules of intestacy to any undisposed of property. Under Poland law a spouse of the deceased and children rank equally in determining how an intestate estate should devolve. In this case, it was determined that the undisposed of estate would be split equally between the spouse and daughter. It should be noted, however, that in other cases a spouse can never inherit less than one quarter of the estate. So, for example, where there are four children, the spouse would receive one quarter of the estate and the children would share three quarters between the four of them.

The other critical issue is that Polish Wills do not make any appointment of specifically named executors. It is the Court which determines the administrative steps to be taken in the estate and issues relevant orders accordingly. Advocates may also be appointed to represent minor beneficiaries.

The official copy of the Will and Postanowienie were translated into English and certified by a suitably qualified translator. Our application to the Probate Registry was for the issue of a Grant of Representation based upon the original Will having been prepared in accordance with Polish Law and as determined by the domicile of the deceased. We asked for the Grant to be issued to the person beneficially entitled to the estate by the law of the place the deceased was domiciled (in the absence of an Executor).

In addition to the Will and Postanowienie, the Probate Registry also required an affidavit of Polish Law to confirm those people entitled to the estate and intending to apply for the Grant in England and Wales. The person preparing the affidavit had to be suitably qualified to comment on Polish Law and we were able to use the services of a reliable contact.

Our client, the widower of the deceased, was the applicant for the purposes of the Grant application. However, it was also the case that the young daughter inherited one half of the estate. In such a case, our Courts require the appointment of a minimum of two administrators to take the Grant.  Our application had to be expanded to include the appointment of a co-administrator. The stipulation is that any person so appointed must be ‘suitable’ in the eyes of the Court. The girl’s godmother was proposed by the father and this was acceptable.

We were pleased to obtain for the administrators a Grant of Representation which allowed them to claim the frozen assets in the estate. Furthermore, we were then able to advise on the establishment of a trust for the funds due to the infant daughter.

If you would like to discuss any of the details within this case please contact our probate team on 01892 510000.

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