Division of an estate in the United States and real property located in Poland – can polish real estate be included in estate division proceedings in the U.S.?

The death of a loved one is an extremely difficult time. Despite the grief following the loss, it is necessary to face many issues, ranging from the funeral arrangements to completing all formalities related to the deceased’s estate. It is therefore not surprising that heirs wish to conclude inheritance matters within a single proceeding and distribute the entire estate, regardless of where the assets of the deceased are located. While such an approach is entirely understandable, heirs undertaking legal actions in the United States may not always achieve the intended legal effect under Polish law.

In cases frequently handled by law firm, decedents residing in the United States often leave behind assets in Poland, particularly real estate. Heirs may attempt to include such assets in U.S. probate proceedings, for example by incorporating them into settlement agreements. However, it turns out that despite the mutual intent and agreement of the heirs as to which of them should become the sole owner of real estate located in Poland, under Polish law ownership will ultimately not be transferred.

Why would the division of real estate located in Poland in proceedings before a court in the United States be ineffective?

It should be noted that probate proceedings in Poland are significantly more formalized than in the United States. In particular, it is necessary to obtain either a court decision or a notarial certificate of succession to confirm legal succession, i.e., to determine who inherits the estate, on what basis, and in what shares. However, neither a court decision nor a certificate of succession will indicate which heir acquires particular assets. Therefore, if the heirs intend to terminate co-ownership of real estate, it is also necessary to conduct estate division proceedings, but the essential first step, as a rule, is to obtain an order from the Polish probate court confirming the acquisition of the estate.

Unfortunately, neither a judgment issued by a U.S. court in this regard nor a settlement concluded before such a court will enable an heir to demonstrate legal title to real property located in Poland. This is because such judgments are neither recognized nor enforceable in Poland with respect to rights in rem to immovable property. In such cases, Polish courts have exclusive jurisdiction over matters concerning rights in rem to real estate, including proceedings for confirmation of acquisition of inheritance insofar as they relate to property located in Poland.

Similarly, a settlement agreement executed in the United States, whether in simple written form or with signatures notarized by a notary public, will not produce legal effect in respect of the transfer of real estate in Poland. The function of a notary public differs fundamentally from that of a notary operating within the Latin notarial system, including Polish notaries.

Can heirs who have completed all estate formalities exclusively in the U.S. sell real estate located in Poland?

Without a formal document confirming their inheritance rights, heirs will also not be able to sell real estate in Poland—even if they agree on the sale and have formally conducted estate proceedings in the United States.

Only a document in the form of a Polish court decision or a notarial certificate of succession drawn up by a notary will enable heirs to remove the deceased’s ownership and register their ownership in the land and mortgage register maintained for the property, and thus demonstrate legal succession, which is necessary for the sale.

Summary

In summary, given the risk that heirs may not achieve the intended legal effect with respect to estate assets located in Poland, it is advisable to obtain legal advice before undertaking actions in the United States on how to handle the division of estate assets located in Poland.

Solutions developed within U.S. proceedings do not always translate effectively into the Polish legal system – a fact often overlooked by heirs. Such complications could be avoided by properly identifying and implementing the necessary legal steps to regulate all matters relating to the deceased’s estate, including assets located outside the United States.