HOW TO PASS ON ASSETS TO YOUR FAMILY
Everyone who has accumulated some assets in their life wonders how they can pass them on to their loved ones. These are not easy decisions; they always require careful thought and an individual choice as to whether we want to remain the owners of the assets until the end of our lives and dispose of them only by indicating an heir in a will, or whether we will transfer them during our lifetime in the form of a donation or a life estate agreement. Each of these forms of asset transfer has different consequences, and the choice depends on us.
Previously, I discussed the institution of a will; today, the donation agreement will be presented.
A very popular form of transferring specific components of our assets to selected persons is a donation agreement.
It is up to the donor to decide to whom they wish to transfer the assets or specific components thereof. The subject of a donation can also be an organised set of items and rights, such as an inheritance, an enterprise, or an agricultural farm.
Often, parents of a future spouse decide to donate an apartment to their child out of fear that a donation made after the wedding would mean the apartment automatically belongs to both spouses.
It should be remembered that a donation made to a child – whether before or during their marriage – will constitute the child's personal property, even if joint property applies in their marriage.
In a donation agreement, a so-called personal housing easement can be established for the donor, ensuring the donor's right to reside in the donated property. Although this involves an additional cost of PLN 200, which is the court fee for entering a personal housing easement in the land and mortgage register, it gives us certainty that we have a place to live for the rest of our lives.
A donation can also be made to minor children. The persons representing minor children under their parental authority are the parents, who act as the child's statutory representatives.
If a minor child receives a donation of real estate free from any debts and burdens, each parent can act independently as the child's statutory representative. However, neither parent can represent the child:
- in legal transactions between children under their parental authority,
- in legal transactions between a child and one of the parents or their spouse, unless the transaction involves a gratuitous benefit for the child or concerns maintenance and upbringing funds owed to the child by the other parent.
If a minor child is to receive a donation of real estate encumbered with any rights or debts, the statutory representatives must obtain the consent of the family and guardianship court to accept such a donation. The management of the child's assets under parental authority is exercised by the parents, although this does not include the child's earnings or items given to them for free use.
Furthermore, a donation agreement can stipulate that the items falling to the child by virtue of the donation will not be subject to the management exercised by the parents.
In such a case, if the donor has not appointed a manager, the management is exercised by a curator appointed by the guardianship court.
NOTE! Donations made to a spouse, descendants, ascendants, stepchild, siblings, stepfather, and stepmother are exempt from donation tax.
Possibility of revoking a donation
The admissibility of submitting a declaration of revocation of a donation and its premises depend on whether it has been executed. If the donation has not yet been executed, the donor may revoke it if they find themselves in a state of so-called destitution, meaning a situation where the execution of the donation cannot take place without prejudice to their own maintenance or statutory maintenance obligations towards others. An executed donation, on the other hand, can be revoked by the donor if the donee has committed gross ingratitude towards them, unless the donor has forgiven them and provided that a one-year period has not elapsed from the day the donor learned of this ingratitude.
The term 'gross ingratitude' should be understood as a series of actions or omissions committed by the donee against the donor in bad faith and aimed at harming them in any sphere of life, seemingly always carried out intentionally. There must be behaviour manifesting ill will, aimed at causing distress and harm, which cannot be reconciled with social norms.