Inheritance Law
Inheritance Lawyer Ankara is a branch of law that deals with legal problems within the scope of private law that arise with the death of the testator. Inheritance law included in the Turkish Civil Code No. 4721 is classified as legal heirship, heirs with reserved shares, the testator’s freedom of disposition, death-related dispositions such as wills and inheritance contracts and their cancellation and reduction, passing of inheritance, deprivation of inheritance, inheritance partnership and sharing, according to the systematics of the law.
In this context, we follow up on cases regarding the determination of the title of heir and the determination, protection, liquidation, rejection of inheritance and extension of the period of rejection of inheritance of the estate, which is the property of the testator, as well as legal consultancy and litigation services in all disputes related to inheritance law such as death-related dispositions, elimination of partnership, collusion of the deceased, ketm-i verese (concealment of the heir).
RECORDING, PROTECTION AND IDENTIFICATION OF THE ESTATE AS A PROTECTIVE MEASURE IN ACCORDANCE WITH TMK Article 589 et seq.[1]
According to Article 599/2 of the Turkish Civil Code No. 4721 (TMK), “the heirs, save for the exceptional cases stipulated in the law, directly acquire the real rights, receivables, other property rights, possession of movable and immovable properties of the deceased without the need for transactions such as registration, delivery, assignment, and become personally liable for the debts of the deceased.” This responsibility is not a liability limited to the assets of the deceased for the heirs, but a personal liability. In other words, it is the responsibility of the heirs with their own assets for the debts inherited from the deceased.
With the death of the deceased, the heirs may not be aware of the assets of the deceased, in other words, the estate, for various reasons. It may not be possible to determine the estate due to reasons such as the deceased having a large asset or the deceased and the heirs not meeting. Failure to determine the estate may leave the heirs undecided about whether to reject the inheritance.
Due to the large assets of the deceased, it may not be possible for the heirs to determine the assets and liabilities of the estate or to obtain information unilaterally. Therefore, the heirs can first request the “keeping of the official book of the estate” based on the provisions of Article 619 et seq. of the TMK, and then they can choose one of the optional rights that include the determination of all assets and liabilities of the estate by making an announcement to all creditors and debtors of the deceased, and then the rejection of the inheritance, the official liquidation of the inheritance, the acceptance of the inheritance according to the book kept, or the unconditional acceptance of the inheritance. However, the keeping of the official book of the estate is subject to a time limit in the law. According to the provision of Article 619/2 of the TMK, “Keeping of the official book is requested within one month, provided that the procedure regarding the rejection of the inheritance is followed.” The one-month period stipulated in the provision is a limitation period and is taken into consideration by the court ex officio. An heir who requests the keeping of the official book of the estate in accordance with the provision of Article 619 of the TMK cannot also request an extension of the period for the rejection of the inheritance. Because it is clear that there will be no extension of time in cases filed within a month, and that one of the optional rights will be used after the bookkeeping is already done.
In this case, how can the determination of the estate be requested after the one-month period has passed? As Inheritance Lawyer Ankara, if the deceased and the heirs have not seen each other for a long time, if the heirs are unaware of each other, or if the whereabouts of the heirs are unknown, how will the estate be determined? If the estate is not determined, the acceptance of the inheritance and the estate being insolvent may have consequences against the heirs. Since the current status of the estate has not been determined by the heirs, the heirs may not be able to decide whether to use the right to reject the inheritance or not. If the period for keeping the official bookkeeping of the estate has passed, the heirs’ title to heirship and their opinion to reject the inheritance can only be possible with the extension of the period for rejecting the inheritance and the acceptance of the requests for the protection, writing and determination of the estate assets.
Inheritance Lawyer Ankara
First of all, a three-month period is foreseen in Article 606 of the TMK regarding the actual rejection of the inheritance. This period is a period of limitation starting from the date of death or the date the heir learns that he is an heir. Heirs must reject the inheritance within the three-month period stipulated in the law. After the three-month period stipulated in the law has passed, the heirs will be deemed to have accepted the inheritance. The three-month period is important in cases where the estate cannot be determined. For this reason, the heirs may request the civil judge of peace to first determine the estate and, in the event of the existence of important reasons within the scope of Article 615 of the TMK, to extend the period of rejection of the inheritance, in other words, the three-month period stipulated in the law. The civil judge of peace will decide on the existence of important reasons. Situations such as the presence of more than one lawsuit by the deceased, the existence of wills he has made, and the inability of the heirs to determine the assets can be considered as the existence of important reasons.
In the said case, firstly the estate of the deceased is determined and all the goods within the scope of the estate are recorded in the book and the estate is sealed.
According to Article 590 of the TMK, the peace judge will decide to keep the estate book if the following conditions are met:
- One of the heirs is placed under guardianship or needs to be placed under guardianship,
- An heir who does not have a representative has not been present for a long time, or
- One of the heirs or interested parties makes a request within 1 month from the date of death.
Although a one-month period is foreseen in the text of the article regarding the keeping of books, this period is a regulatory period and is not excluding rights. In this regard, as ruled by the Court of Cassation, “The one-month period included in Article 590 of the Turkish Civil Code is not a excluding rights period but is of a regulatory nature. Since measures regarding the protection of the estate do not have a material effect on the acquisition of the inheritance or the title of heir in terms of their legal nature, they can be requested at any time until the sharing even if this period is exceeded. The plaintiff’s request is a request for the determination of the estate as a precautionary measure in accordance with Article 589 of the Turkish Civil Code. In the face of this situation explained and determined from the entire file, it is not correct for the court to make a decision in writing while the necessary measures should have been taken within the framework of Article 589 of the Turkish Civil Code.” (1)
In the same regard, in another decision of the Court of Cassation, “All these measures are within the scope of the protection and determination of the estate. Since the measures for the protection of the estate do not have a material effect on the acquisition of the inheritance or the status of heir in terms of their legal nature, they can be requested at any time until the division, even if this period is exceeded. The one-month period included in Article 590 of the Turkish Civil Code is not a limitation period but is of a regulatory nature. Since the plaintiff is an heir, he has a legal benefit in requesting that the registry be kept for the determination and protection of the estate.” (2)
In another decision that clarifies the issue, the Court of Cassation reached the following conclusion: “The one-month period included in Article 590 of the TMK is not a limitation period but is of a regulatory nature. Since the measures for the protection of the estate do not have a material effect on the acquisition of the inheritance or the status of heir in terms of their legal nature, they can be requested at any time until the division, even if this period is exceeded. The plaintiff’s request is a request for the determination of the estate as a precautionary measure in accordance with Article 589 of the TMK. In the face of this situation, which was explained and determined within the scope of the entire file, it was not deemed correct for the court to make a written decision while the necessary measures should have been taken within the framework of Article 589 of the TMK, and therefore the decision had to be overturned.” (3)
The competent court for determining the estate and taking other measures is the last place of residence of the deceased. If the deceased died in a place other than the place of residence, the judge of the peace of that place shall notify the judge of the peace of the place of residence of this death without delay and shall take the necessary measures to protect the properties of the deceased at the place of death and send the relevant file and the will, if any, to the judge of the peace of the place of residence.
Protective measures that are of a declaratory nature are non-contentious judicial matters and do not constitute a final judgment. In addition, the judge may take all protective measures for the determination and protection of the estate ex officio, and the heirs may also request them. If one of the heirs files a lawsuit for the determination of the estate, the other heirs must also be included in the lawsuit. Following the determination of the estate assets, the division process will not be carried out unless all the heirs approve. If the judge of the peace court has decided to extend the period for rejecting the inheritance, the heirs will be able to make a positive or negative decision on whether to accept the inheritance or not, once the estate assets have been determined.
(1) Court of Cassation 14th HD, E.2016/6232, K.2019/767 numbered decision.
(2) Court of Cassation 14th HD, E.2015/18247, K. 2017/2270 numbered decision.
(3) Court of Cassation 14th HD, E.2015/7037, K. 2016/6569 numbered decision.
[1] In this study, the issue of “keeping the official book of the estate” stipulated in the provisions of Article 619 et seq. of the TMK has