A notary will - what does its preparation look like?
Inheritance in Poland may take place on a statutory or testamentary basis. While the first method does not require the testator to take any action, in the second case it is necessary to prepare the last will in an appropriate form. Of course, we are talking about a will, which can be written down in a notarial deed. How is a notary will be prepared?
What is a notary will?
A will is a document that contains the deceased's last will and a legal act performed by the testator while still alive. In practice, it has been assumed that the will is the fulfillment of the deceased's intentions, mainly in terms of property.
Testamentary inheritance is a form of obtaining the rights of inheritance by a person who has been appointed to the estate of the deceased and who has decided to accept the left inheritance (directly or with the benefit of an inventory).
Judgment of the SA in Białystok of April 12, 2013 (file reference number I ACa 517/12)
A will is a private document and is only evidence that the person who signed it made the declaration contained therein […].
The Civil Code divides wills into two main categories:
ordinary - we can find among them a personal, official and notary will;
special - we can find oral, travel and military wills among them.
A notary will is one of the most frequently chosen forms of the last declaration of will in Poland. Right next to it there is a handwritten will (also known as a holographic will).
As the name suggests, a notary will may be drawn up only by a notary public, and it is possible both at the office itself and during travel activities (e.g. at the client's home or hospital where he is staying). Remember, however, that drawing up wills outside the office is allowed only for important reasons - e.g. the impending death of the testator, illness or health condition that prevents traveling.
Notarial will - preparation procedure
A notary will can actually be drawn up in front of each notary public, the choice is made each time by the future testator. The proximity of the testator's residence to a given office or the choice made by his immediate family does not matter here. We should remember that no one can force us to make a declaration of last will, let alone require the inclusion of appropriate inheritance dispositions in it - if this happens, then there are effective legal methods to challenge the will.
The drafting of the last will should begin, however, not with the selection of the appropriate notary, but with careful consideration of future succession dispositions. A notarial will can take various forms - only one person can be appointed to the inheritance, all from the immediate family or a designated part, and even complete strangers (i.e. from outside the testator's family). The testator may also decide that he will not appoint anyone to inherit, but only disinherit selected persons - in this situation the inheritance will take place pursuant to the provisions of the Act, excluding the disinherited.
In the notarial will, he can finally include ordinary records, debt collection records, orders for the benefit of designated persons, without making anyone heir. It is also possible to revoke previous wills, provided that they have already been made. The form of the previous wills is irrelevant (so you can revoke a personal will with a notarized will, but also revoke a notarial will with your own will).
The first step in preparing a notarial will is therefore to determine what exactly we would like to include in such a document, and only then to choose the appropriate notary.
What documents are needed to make a notarial will?
It is rarely possible to draw up a notarial will immediately, i.e.entering the first office we meet straight from the street. Each activity requires appropriate preparation on the part of a notary public and making an appointment for a specific date. Wills, however, are not activities that take up a lot of time, so customers do not have to wait too long for available dates.
Each notarial activity requires the collection of appropriate documents, and this is also the case with a will. If you decide to make a declaration of last will, you should take with you:
a valid document confirming identity - in Poland it will be an ID card, passport or residence card. Unfortunately, the driving license will not be the correct document here;
data of persons indicated in the will (e.g. appointed to inherit or disinherited) - the name and surname of such person, names and surnames of their parents, PESEL number and date of birth will be needed;
the number of the land and mortgage register of the real estate or the data of the premises that does not have a book - this only applies to the case where the will will establish a debt collection record of the real estate for the benefit of the designated person.
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Notarial will - preparation
Regardless of where the notarial will is drawn up, the activity is performed only between the notary and the testator. In practice, therefore, it is not possible for third parties to take part in the activity, even if they are members of the closest family of the future testator.
A notary should categorically refuse the participation of third parties in such an action, if he does not, the last will will be defective - in the future, based on this objection, it will be possible to effectively challenge it. Therefore, if third parties do not agree to leave the premises during the preparation of the notarial deed, the notary must absolutely refuse to perform the requested action.
The drawing up of a will itself is not time-consuming, usually takes no more than half an hour, and in rare cases - an hour. The notary public first determines the testator's awareness, which is especially important in the case of elderly and sick people. He asks questions to check whether a given person really wants to make a will with a specific content, and is not, for example, under the influence of his relatives (unfortunately, pressure in this regard by members of the testator's family happens quite often). If the notary decides that the person does not really want to make a will or does not have full legal capacity (e.g. has been incapacitated), the will will not be made at all.
After the checking, the notarial deed is read out. The testator has the option to question all entries, even if they were previously agreed with him. Remember that a notary public is an official who must listen to his client - so if the testator wants to amend the deed while reading the deed, it should be done (provided, of course, that they comply with the applicable regulations).
If everything is fine, the testator and notary public sign the deed, and then the payment is made for the action performed. Between these events, the testator waits for the preparation and issue of extracts of the notarial deed. The original of the will is kept in a notary's office for 10 years and then forwarded to the competent district court.
Costs of notarial activities and notarial will
The costs of the notarial act depend on what the client really wants. In practice, we can therefore deal with very short, one-page wills, but also larger documents, even several pages long. Of course, in the first case, the price for the services of a notary will be much lower.
Regardless of the above, let us remember that each notarial will must be prepared in an appropriate form - such that it will not be possible to challenge it in the future.
Decision of the Supreme Court of December 16, 2009 (file reference number I CSK 188/09)
The provisions relating to the form of a notary will aim to ensure, in particular, the authenticity of a will, the will to test and the ability to test […].
If a will is in the form of a notarial deed, it should be drawn up with particular care, so that after its opening and announcement, it does not raise doubts as to its seriousness, the real will of the testator and the circumstances of its preparation, or as to its form as a document about the value of an official document and its content. Therefore, it should not look like a rough draft or a letter preparing the relevant act within the meaning of Art. 2 of the law on notaries and the provisions of civil procedure relating to documents. If it resembles such a form, then the submitted act should be assessed from this point of view, and not only on the basis of its content itself, which might not have arisen with the actual intention of producing legal effects.
The fees for drawing up a will are as follows:
will - PLN 50,
a will containing an ordinary bequest, instruction or deprivation of the entitled right to a reserved share - PLN 150,
will containing a vindication legacy - PLN 200,
revocation of a will - PLN 30.
Additional fees may be added to the above amounts:
drawing up a will outside the office during the day (from 8.00 to 20.00) - additional PLN 50 per hour,
drawing up a will outside the office at night and on non-working days - additional PLN 100 per hour.
All the above amounts are increased by the VAT due, which currently amounts to 23%.
The original of the will remains with the office, while the party to the action (and the persons authorized by it in the will - e.g. heirs appointed) have the right to receive extracts of the act. For the preparation of an extract, the maximum rate is PLN 6 for each started page + 23% VAT.
Remember that the amounts given are maximum rates - this means that each notary can apply discounts and thus grant discounts on all types of wills, as well as the service of issuing an extract of the act.
Notarial will - summary
Drafting notarial wills is a relatively simple activity that does not require a significant amount of time. It can take place both at the seat of the selected law office and outside it - in the place where the testator is located. Notary wills are not expensive, their average cost ranges from 50 to 100 PLN. Any declaration of intent of this kind may be revoked by the testator as long as he is alive.