What is an inheritance?
The inheritance is the total estate left behind by the deceased. It consists of the total assets and liabilities of the deceased.
Determination of the inheritance
Article 589 – The civil court judge of the deceased’s place of residence takes all necessary measures to protect the estate and ensure its transfer to the rightful heirs, either upon request or ex officio.
These measures specifically relate to the recording of the assets and rights found in the estate in the cases specified by law, sealing the estate, the official management of the estate, and the opening of wills.
Upon the death of the deceased, the civil court judge in the place of residence of the deceased takes the necessary measures to protect the estate. These measures are as specified by the law.
The costs related to these measures are to be borne by the applicant, to be recovered later from the estate; in cases where the judge has made a decision ex officio, the State bears the costs.
If the deceased has passed away outside of their place of residence, the civil court judge in the location of death immediately informs the civil court judge of the place of residence and takes the necessary measures to protect the deceased’s property at the place of death, then sends the related file and any will to the civil court judge of the place of residence.
If the deceased dies outside of their place of residence, the civil court judge in the place of death takes the necessary measures to protect the assets in the deceased’s place of residence and sends the file to the civil court judge of the place of residence.
What is an inheritance inventory lawsuit?
It is a lawsuit filed to determine the assets and liabilities in the estate based on the statements of the parties and evidence. Correspondence is sent to the relevant authorities to ensure the flow of information, and if necessary, an inspection is conducted. The estate is determined by the court in this manner. This lawsuit can be filed by the heirs after the deceased’s passing. The plaintiff must request correspondence from the relevant departments to identify the deceased person’s movable and immovable assets for the purpose of determining the estate. For immovable property, correspondence must be sent to the land registry and cadastre office, for movable vehicles, correspondence must be sent to the traffic registration office, and for liquid assets, correspondence must be sent to banks. If there are suspicions of fraud in the transactions carried out by the deceased during their lifetime, these transactions can also be brought to court. It is also possible to file a lawsuit with a request for a precautionary measure to prevent the heirs from hiding assets from the estate. This ensures that no one can dispose of the assets in the estate.
Rights that cannot be added to the estate
- Personal rights
- Rights arising from family law
- Contracts in which the parties’ personalities are important (such as agency, service, and work contracts)
- Personal servitudes, excluding the right of superficies and right of sources (usufruct right, right of residence)
- Compensation for loss of support
- Severance pay
- Death compensation
- Retirement bonus
The rights listed above will not be included in the estate as either assets or liabilities.
Where is the lawsuit filed?
The estate determination lawsuit is filed at the probate court of the deceased’s place of residence, either upon request or ex officio.
The results of the lawsuit for the calculation of the estate.
The total assets and liabilities of the estate are determined, allowing the heirs to learn about the estate. After the estate is determined, the court identifies who the heirs to the estate are. Once determined, the heirs are notified to ensure they are informed about the estate. The court also determines each heir’s share and establishes what they are entitled to. As a result of this case, the court may deduct the deceased person’s debts from the estate for collection.
Statute of limitations.
The lawsuit for the determination of the estate becomes viable at the time of the testator’s death. It can be filed on any date after the testator’s death and is not subject to any statute of limitations.
Relevant Court of Cassation decisions.
The Court of Cassation, in its case review, stated that in an inheritance partnership, the heirs are required to act together and must carry out the transactions jointly. However, in case of a disagreement, the possibility of appointing a representative until the inheritance is divided, as recognized in Article 640 of the Turkish Civil Code (TMK), is provided. Therefore, since the appointed representative’s duty is to perform their role until the division of the inheritance, it was found to be unlawful to impose a limitation on the representative’s duties until the decision is finalized, without considering this period. The appeal objection was accepted, and a decision for reversal was made. (Court of Cassation, 14th Civil Chamber, Case No. 2015/13162, Decision No. 2016/2705)
In the case review, the Court of Cassation noted that according to Article 589 of the Turkish Civil Code (TMK), the judge of the civil court at the deceased’s place of residence is responsible for taking all necessary measures to ensure the protection of the deceased’s assets and the transfer of rights to the rightful heirs, either upon request or ex officio. According to Article 19/1 of the TMK, the place of residence is defined as the place where a person stays with the intention of permanent residence. According to the police investigation regarding the deceased, it was reported that no relatives could be found due to the fact that the deceased had moved one year ago, and it was stated that the matter should be resolved in the first court. (Court of Cassation, 20th Civil Chamber, Case No. 2019/6183, Decision No. 2020/323)
14th Civil Chamber, 2016/5311 E., 2017/2635 K.
The case is related to the request for the determination of the estate for the purpose of its protection. The plaintiffs have requested that the estate of the deceased, who passed away on 11.11.2015, be fully determined, including its credits and debts. The court rejected the case, citing that it was filed after the expiration of the statute of limitations. The judgment has been appealed by the plaintiffs’ attorney.
The request is related to determining the elements that make up the estate as of the date of death, not as “official record-keeping” based on Article 619 of the Turkish Civil Code, which is used for acceptance or rejection of inheritance, but as a “protective measure” as stated in Article 589 and the following provisions of the same law. This request aims to identify the assets and rights within the estate, creating a source of reference for possible disputes, and allowing the opportunity to learn about the situation at the time of death regarding the contents of the estate. As a protective measure, the determination of the estate is generally not subject to a time limit, and can be requested unless this measure becomes impossible or unnecessary or the estate is divided. This process does not affect the rights and debts in terms of substantive law. It does not serve as evidence that the identified assets belong to the estate or that those not identified do not belong to the estate. The approval or acceptance of identified items by the heirs does not absolve them from responsibility for debts not identified, nor does it mean that they cannot make claims regarding unrecognized estate receivables. Despite the identification of the estate, heirs may dispute the identified or unrecorded (whether written in the book or not) items against each other or third parties. The “protective measure” as recorded in the book (the writing of the estate) does not serve as the basis for future distribution of the inheritance or any other private legal relationship. In this regard, the one-month period in Article 590/3 of the Turkish Civil Code is not a “statute of limitations” for the heirs or other concerned parties, but rather an obligation on the judge to accept applications made within a month, as indicated in the final clause of the same article, which stipulates that “the record-keeping process shall be completed without delay.” Even if the one-month period in Article 590/3 is exceeded, the determination and recording of the estate as a protective measure may be requested until the estate is divided, unless it becomes impossible or unnecessary.
Therefore, the court should request information from official institutions regarding the deceased’s movable and immovable property, and remind the heirs who possess the estate goods or owe the deceased that they are obligated to provide information about the deceased’s financial status. By obtaining this information from the heirs, in accordance with Article 33 of the “Regulation on the Implementation of the Provisions of Custody, Guardianship, and Inheritance of the Turkish Civil Code,” the identification of the assets and rights (whether movable or immovable) in the estate as of the date of death should be carried out. The rejection of the request was found to be incorrect.
CONCLUSION: For the reasons explained above, the plaintiff’s appeal is accepted, and the judgment is REVERSED.
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