The Banker’s Bequest. The Polish Way of Bequeathing Money
A small clause in Polish banking law lets the dead reach across the threshold of probate. The trouble — as it usually is with money and the dead — lies in the details.
A woman in Warsaw walks into a bank branch on a Tuesday morning, carrying her father’s death certificate and a folder of documents she has been told to bring. She is not yet sure what she has come for. Her father, a retired engineer, kept his savings here for thirty years; she assumes that some portion of them is now hers, though she has never asked, and her father, in the manner of men of his generation, never volunteered. The teller takes the certificate, types into a terminal, and looks up.
“There’s a dyspozycja,” she says.
This is news to the daughter. A dyspozycja wkładem na wypadek śmierci — a “disposition of the deposit in the event of death” — is a written instruction her father once filed with the bank, naming her as the recipient of a specific sum. It bypasses the courts, the inheritance proceedings, the months of waiting. The teller will pay her the money before she leaves the branch. There will be no executor, no certificate of inheritance, no notarial deed. The funds, in the elegant phrase of Article 56, paragraph 5, of the Polish Banking Act, do not enter the estate.
The daughter, depending on her circumstances, will be either grateful or astonished. If she has siblings — and especially if her father, the engineer, omitted to mention the dyspozycja to anyone else — she may, in time, become litigious. The instrument is a kind of bequest that travels under another name; it appears in no will, requires no notary, and has the curious property of being legally invisible until the moment of death, at which point it becomes, suddenly and irrevocably, hers.
Most Poles have never heard of it. Those who have heard of it tend to misunderstand at least one of its features. Bankers themselves, who are required by law to administer it, have been known to fill out the wrong form. The Polish courts have spent the better part of a decade quietly working out what, exactly, the thing is.
I.
The institution arrived in Polish law in 1964, by way of the Soviet Union, at a moment when the only bank in the country willing to accept deposits from ordinary citizens was the state savings monopoly. The thinking, on the part of the authorities, was that Poles would be more inclined to deposit their meager savings if they could imagine those savings reaching their families promptly upon their death, without the indignities of probate. The thinking, on the part of the citizens, is undocumented. What survives is the statute.
The current text — Article 56 of the Banking Act of 1997, as amended — runs to six paragraphs. It permits the holder of a savings account, a checking account, or a term deposit to instruct the bank, in writing, to pay a specified sum, upon the holder’s death, to a person from a closed list of relatives: spouse, ancestor, descendant, or sibling. It caps the sum at twenty times the average monthly wage in the enterprise sector, as announced by the President of the Central Statistical Office for the month preceding death. The instruction can be changed at any time. The amount paid out, the fifth paragraph specifies, does not enter the estate.
It is the fifth paragraph that contains the mischief.
In the architecture of Polish inheritance law, an estate is a comprehensive thing. It includes everything the deceased owned, became responsible for, or was owed; it is divided according to a will, or, in the absence of one, according to a statutory hierarchy of relatives; it is the unit on which the heirs’ liability for debts is calculated. To say that something does not enter the estate is to declare it, by legislative fiat, exempt from this comprehensive ordering. It is to carve out a small island.
The dispositions, in practice, are usually small islands. The statutory cap, in the autumn of 2024, sat at around 165,000 złoty — a sum that will pay for a funeral, a few months’ rent, perhaps the down payment on an inexpensive car. But the islands accumulate. A diligent saver with accounts at five different banks may, in the eyes of the law, leave behind five separate dispositions, each capped at the statutory limit, each individually unobjectionable, each in willful ignorance of the others. Banks, as we will see, do not consult one another on these matters. They are forbidden to.
The cap, as a result, is theoretically absolute and practically negotiable.
II.
Witold Borysiak, a professor at the University of Warsaw and one of the country’s leading authorities on inheritance law, has spent the better part of two decades trying to clarify what the disposition actually does. His commentary on Article 56, in the second edition of the Dybiński treatise on banking law published this year, runs to roughly two hundred densely cross-referenced paragraphs, and constitutes something like the standard account. Borysiak’s conclusion is that the disposition is a jednostronna, nazwana, każdocześnie odwołalna czynność prawna mortis causa — a unilateral, statutorily named, indefinitely revocable legal act mortis causa. The Latin tag is doing real work. A mortis causa act, in the civil-law tradition, is one that produces no effects during the lifetime of the actor and takes hold only at the moment of death. The classical example is a will. The disposition is, in this sense, a kind of will that has slipped its moorings — drafted on a bank form rather than before a notary, witnessed by a clerk rather than by friends, governed by Article 56 of the Banking Act rather than by the Civil Code’s elaborate provisions on testamentary form.
This slippage matters, because Polish inheritance law is built around the proposition that a person can dispose of property after death only through a will. The principle, codified in Article 941 of the Civil Code, has the kind of architectural prominence that constitutional norms have in American law: it is the load-bearing wall of the system. Article 56 is, accordingly, an exception — and a contested one.
The contest has produced, over the years, a doctrinal literature of considerable refinement. Authors disagree about whether the disposition is a unilateral act or, properly understood, a contract between the depositor and the bank. (The 2004 amendment, which inserted the verb polecić — to instruct — settled the question in favor of the unilateralists, but only after the publication of two distinguished monographs arguing the other way.) They disagree about whether the bank’s acceptance of the form is a condition of validity. They disagree, with particular intensity, about what happens when a beneficiary commits a serious crime against the depositor. They disagree, in a controversy of recent vintage, about whether the disposed sum is to be added back into the estate for the purposes of calculating the zachowek — a forced-share entitlement guaranteed to close family members of a deceased person, designed to prevent them from being entirely cut out of the inheritance. The Polish zachowek has no precise American analogue; it functions, very roughly, like the elective share of a surviving spouse in some American jurisdictions, but extended to children and parents as well. It is the fail-safe of Polish family law, the device by which the system insists that you cannot, however much you wish to, disinherit your children entirely.
The question, then, is whether a depositor who routes a substantial sum to one favored child by way of dyspozycja — and away from the others — has thereby diminished the zachowek of those others. Most of the doctrine, and most of the case law, says yes. The disposition is added back in for zachowek purposes, treated as if it were a lifetime gift, and the favored child may, depending on the size of the residual estate, find herself paying the others their forced share out of the very money she has just withdrawn from the bank. Three appellate decisions — from Gdańsk in 2013, Warsaw in 2017, and most clearly from the District Court in Łódź in 2016 — have affirmed this view. The Łódź court put it with admirable directness: the sum should be added to the estate on the basis of Article 993 of the Civil Code. It does not constitute either an ordinary legacy or a testamentary instruction, and the character of this act is decisively closer to a gratuitous transfer, and thus to a gift.
So far, so coherent. The complication arrives when one asks the parallel question — whether the disposition is to be added back in for the purposes of the dział spadku, the division of the estate among the heirs.
III.
The dział spadku is the procedural sequel to inheritance: once the heirs have been identified and the estate measured, the assets must actually be split among them. Polish law provides, in Article 1039 of the Civil Code, that lifetime gifts from the deceased to certain close heirs — spouses and descendants — are to be added to the assets being divided, on the theory that a parent who has favored one child during her lifetime ought not to be permitted to favor that child a second time at the moment of division. This is the zaliczenie na schedę spadkową — the credit against one’s share — and it is, like the zachowek, a device for enforcing rough equality among children.
For two decades, the Polish courts treated dispositions like gifts for these purposes too. Then, in September 2017, the Supreme Court issued an opinion holding that they should indeed be so treated, on the theory that any gratuitous transfer from a parent to a child counts. This seemed to settle the question. It did not.
In April 2022, the same court, sitting in a different chamber, reversed itself. Its opinion — III CZP 57/22, published in the official reports — is a small masterpiece of legal reasoning, by which I mean that it accomplishes its work with a minimum of rhetorical fuss. The court began with the language of Article 1039, which speaks of “gifts” and “specific bequests.” A gift, the court observed, is by definition a contract between living persons. A dyspozycja, by the court’s own earlier definition, is a mortis causa act. The two are categorically different. To treat the disposition as a gift is to treat mortis causa as inter vivos — and the legislator, the court noted, has not done so, despite having had multiple opportunities. The Civil Code was amended in 2011 to incorporate the new institution of the zapis windykacyjny, the specific bequest; that amendment carefully extended Article 1039 to cover the new instrument. No comparable extension has been made for dispositions, despite their long existence and their increasing popularity. The silence is meaningful.
The court added a second argument, this one more textured. A depositor who fills out the form at the bank knows, the court reasoned, that the sum is exempt from the estate. He has read paragraph five — or has had it explained to him by the clerk. He is, in choosing to use the disposition rather than the will, signaling something. He is not signaling an intention to equalize among his children. He is signaling the opposite: he is choosing this favored child, this favored sum, to receive something extra. The depositor, in the court’s phrase, acts with the intention of conferring upon the beneficiary of the disposition a particular benefit beyond his share, not in order to deprive him of it.
There is, finally, a third argument, which the court mentions almost in passing but which deserves a longer look. The list of permissible beneficiaries under Article 56 is broader than the list of heirs to whom Article 1039 applies. A grandfather, for instance, can be the beneficiary of a dyspozycja — but a grandfather is not in the first class of statutory heirs and is not subject to the equalization rule. If dispositions were to count for purposes of the dział, only some beneficiaries would be subject to the credit, while others would walk away free. The asymmetry would be embarrassing. Better, the court concluded, to treat dispositions as outside the dział regime altogether.
The doctrinal consequence is exquisite, and a little vertiginous. A father who designates one of his three children as the beneficiary of a dyspozycja will find that the same payment is, simultaneously, added to the estate for purposes of the zachowek and not added to the estate for purposes of the dział. The first calculation protects the disinherited siblings against being stripped of their statutory minimum. The second permits the father, within those limits, to favor his chosen child without the rough-equality machinery of Article 1039 grinding the gift down. The system has, in effect, decided that disinheritance is forbidden but favoritism is permitted — a distinction that may strike American readers as odd, and that strikes some Polish doctrinal writers as odder still. It is, however, the law.
It is also, viewed from the right angle, an instrument of considerable subtlety. A father who has spent his last years in the care of one daughter — bathed by her, driven by her to medical appointments, sat with at three in the morning when the chest pain was bad — may wish to leave her something extra without engaging in the formal disinheritance of his other children. The will is too blunt for this; the will is also subject to challenge, in Poland as elsewhere, on grounds of incapacity, undue influence, defective execution. The dyspozycja is quieter. It is also cheaper. A notary’s fee for a will runs to several hundred złoty; the dyspozycja, in most banks, is filed for the price of the form.
IV.
The Polish courts have produced, over the past fifteen years, a body of decisions that bankers would do well to read more carefully than they have. The cases come from the smaller cities, the courts of first instance — Jelenia Góra, Kłodzko, Olsztyn — and they share a common shape. A bank clerk, presented with a form by a depositor, accepts it without verifying that the named beneficiary belongs to the closed list of permissible relatives. The depositor dies. The bank discovers, sometimes years later, that the disposition was void from the start. By then the depositor’s actual heirs have collected what they could of the estate. The intended beneficiary — a niece, a stepson, a partner of long standing — receives nothing, because nothing was lawfully designated for her.
The intended beneficiary then sues the bank.
The most instructive of these cases — I C 595/19, decided by the District Court in Kłodzko in July 2019 — involves a man who, in December 2004, walked into his bank and asked to file a dyspozycja in favor of his nephew. The clerk, working from a form printed before the May 2004 amendments that had narrowed the list of permissible beneficiaries, told him this was perfectly fine. It was not. Nephews had been excluded eight months earlier. The depositor died in 2017, having lived for thirteen years under the impression that his bank had recorded his wishes. His nephew received, as a statutory heir, half of the funds in the account. The other half went to his brother, also a statutory heir, who had not been the intended beneficiary at all.
The court held the bank liable for the difference. The reasoning is delicate — the damage, after all, is hypothetical, consisting of what the uncle would have done had the bank correctly informed him in 2004. He might, the court speculated, have made an outright lifetime gift to the nephew; he might have rewritten his will. He might have done nothing at all, in which case the loss would be impossible to prove. The court was nonetheless willing to reason in the conditional. Banks, it observed, are professional actors. They are paid to know the law that governs their transactions. They cannot, for thirteen years, file forms they know to be obsolete and disclaim responsibility when the consequences arrive.
J. M. Kondek, the most prominent skeptic of this line of reasoning in the academic literature, has called it the imposition of too high a standard of care. The phrase has the pleasing quality, common in academic critiques, of conceding the entire substance of the disagreement: of course the standard is high. The question is whether it ought to be. The lower courts, with admirable consistency, have decided that it ought.
V.
What remains is a set of complications too small to organize a separate section around but too important to omit entirely. The disposition is subject to inheritance tax — Polish inheritance tax, which is one of the more lenient in Europe, but tax nonetheless. Beneficiaries who fail to file the proper notice (form SD-Z2) within six months of the depositor’s death lose the close-family exemption and find themselves liable for ordinary rates, which on a six-figure sum can produce a serious bill. The bank, which is required by Article 19 of the Inheritance Tax Act to notify the tax authorities of the payment within fourteen days, is jointly liable with the beneficiary if it fails to do so — a quietly catastrophic provision that compliance officers in Polish banks tend to learn about only when something has already gone wrong.
The disposition does not survive the depositor’s bankruptcy. Or rather, the doctrine is divided on whether it does — Borysiak, taking the more cautious view, argues by analogy from Article 422 of the Bankruptcy Act, which renders testamentary bequests void as against the bankruptcy estate. The position has not yet been tested in the higher courts.
The disposition cannot be made on a joint account, for reasons the legislature has never quite explained but that scholars have rationalized as a prophylaxis against the chaos that would ensue if either co-holder could secretly designate beneficiaries against the other.
The disposition can be made in favor of a child not yet born — a nasciturus, in the dignified Latin of the Civil Code — provided the child is later born alive, which is one of those provisions whose practical application is rare but whose theoretical interest is considerable.
The disposition cannot be made in favor of an unmarried partner, however longstanding, however loving, however much resembling a marriage in every particular except the legal one. This is the exclusion most likely to surprise foreign readers, and most likely to wound those affected. A man who has lived for thirty years with a woman not his wife — and there are many such men in Poland — cannot, by way of dyspozycja, leave her the contents of his savings account. He can leave it to his estranged brother, whom he has not seen in a decade. He cannot leave it to her. The list of permissible beneficiaries, drawn up in 2004 in the spirit of restoring something the legislature called family solidarity, draws a sharp and traditional line.
VI.
The institution exists in roughly comparable form in a handful of post-Soviet jurisdictions and almost nowhere else. German law achieves something like the same effect through the contract for the benefit of a third party upon death — a creature of Section 331 of the Bürgerliches Gesetzbuch, and a more elegant solution, since it does not require an express statutory exception to the usual rules of testamentary form. French law arrives at a similar result through a doctrine of bank-account donation. Common-law jurisdictions, on the whole, do not have the problem at all — the payable-on-death account, available in most American states, performs the same office, with fewer doctrinal contortions and a broader list of permissible beneficiaries.
The Polish dyspozycja survives, in 2026, partly out of inertia, partly out of sentiment, and partly because no one has come up with a better way to give grieving widows access to grocery money in the weeks before probate begins. The leading scholar of the institution, Professor Borysiak, ends his commentary with a note of mild disapproval — the institution, he writes, is a fragment of a larger architecture that ought to be rationalized — and a recommendation to retain it anyway.
The daughter at the bank in Warsaw, meanwhile, walks out with her father’s money and a vague sense that something unusual has happened. She is not entirely wrong. Her father, a quiet engineer who never spoke of money, has reached across the threshold of probate and handed her a sum she did not know she was due. The thirty years he spent depositing his salary at this branch have produced, in their final accounting, this small inheritance and this small surprise. She will use it, probably, to pay for the funeral. The rest of the estate — the apartment, the car, the books — will take eight more months to settle. By then, in the way of these things, she will have forgotten the dyspozycja entirely.
This is what the institution was built to do. The bank knows it. The depositor knew it. The law, in its peculiar Polish way, has spent sixty years making sure that they could.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
