Legislative work on the government draft of the new law on the management of a succession company of a natural person is ongoing in the parliament (segment printing number 2293). The legislator rightly took account of social demands.
The draft new law also fits into the long-standing tendencies of the economic separation of an undertaking run by a natural person and maintaining the continuity of the company's activities, even after the death of a natural person (e.g.
the institution itself of the recovery record or even the view expressed by the Supreme Court in the ruling from 2 June 2017 reference no. II CSK 722/16).
The project assumes that the entrepreneur himself, even before or after his death, the heir, in particular the spouse, may appoint a succession manager to manage and run the business as a whole until the inheritance is divided between the heirs.
Establishment of a succession administrator
The project assumes that the entrepreneur himself, even before or after his death, the heir, in particular the spouse, may appoint a succession manager to manage and run the business as a whole until the inheritance is divided between the heirs.
The establishment of a succession administrator by an entrepreneur requires written form under the rigor of invalidity.
If an entrepreneur has not applied for entry of a succession manager in life to CEIDG or has not indicated that the proxy concerned will become a succession manager after the death of the entrepreneur, then it is assumed that the succession manager has not been established by the entrepreneur and the right to establish the succession manager is entitled to a spouse or heir.
Namely, after the order to establish the acquisition of inheritance, to register an inheritance certificate or to issue a European inheritance certificate, the succession manager will be able to appoint the owner of the company as inheritance.
In order to appoint a succession manager, the consent of persons who together have a share of the company in the inheritance greater than 85/100. At that time, the appointment of a succession administrator, as well as the consent of persons who together have a greater share than 85/100 require the form of a notarial act to be retained.
In accordance with the draft, right to appoint first the succession administrator expires on expiry two months from the date: the death of the entrepreneur or the finding of the corpse of the entrepreneur or the finalisation of the order of the court declaring the death.
Appointed inheritance manager
In matters arising from running the company in decline, the succession manager will use the current company of the entrepreneur with the additional designation “in decline”.
Since the establishment of the Successive Management Board, the Successive Administrator shall exercise the rights and obligations of the deceased entrepreneur resulting from his business activity, as well as the rights and obligations in matters arising from running the business in decline.
The succession manager acts on his own behalf, on the account of the owners of the company in decline and cannot be reduced by the management with effect on persons third. The contract rules shall apply mutatis mutandis to relations between the manager and heirs.
The company's owners are held jointly and severally liable for the obligation to operate the company in decline, while the manager may bear compensation for his actions and omissions.
An important element to pay particular attention to is that administrative decisions issued to the deceased entrepreneur do not automatically pass.
Name three months from the date of the establishment of the succession board, the succession administrator may submit to the public administration which issued the decision relating to the undertaking a request for confirmation of the possibility of implementing that decision.
If the conditions for obtaining a decision under the specific laws are not met, the succession manager will not provide documents confirming compliance with the requirements or will not accept all the conditions from the decision, then the administrative decision will not be enforceable.
Moreover, if the administrator fails to comply with the personal conditions related to the administrative decision in question, the more this decision cannot be continued within the undertaking.
The institution of the succession board will also be used as appropriate when the entrepreneur was a partner of a civil partnership.
The incentive to take over and continue running the company is to be exempt from inheritance and donation tax, which should be assessed positively.
Author:
Aleksandra Księżyk
Director of the Legal Department in Warsaw. Legal advisor, from 2013 associated with Russell Bedford. He runs the Legal Department at the Chancellery Russell Bedford. He has many years of experience in working in Warsaw Law Firms mainly for medium and large enterprises, but also for companies of the State Treasury.
In her practice, she dealt with legal and administrative proceedings, as well as the creation of various types of contracts, including elements of intellectual property law, agreements, regulations, internal documentation, as well as purchasing.
However, the main area of practice and interest is commercial law and business transformation processes with elements of tax and balance sheet law. He prepares and then implements and conducts merger, division and transformation processes, as well as the creation and elimination of entities.
In the field of proceedings, he shall develop procedural or negotiated strategies. It implements custom projects and implements custom solutions, prepared according to individual customer needs. The author of articles on mainly aspects related to transformation processes.