I. WHAT IS DISCLAIMER OF INHERITANCE?
The assets of movable and immovable properties, rights, receivables and debts, which is of a deceased person, pass to his/her heirs automatically upon death as a whole, in accordance with the law (Turkish Civil Code (TCC) 599/1).
Heirs are personally responsible for the debts of the deceased, not for the property inherited from them (TCC. 599/2). The heir who accepts the inheritance is against the creditors due to the debts of the testator; inheritor is responsible for his personal assets such as his house, car, money in the bank, and this responsibility is a joint liability (TCC. 641/1). Creditors can demand the entire debt from any heir they wish. The heir who fulfills the debt can recourse to other heirs for the part exceeding his share, because each of the heirs is obliged to pay the debts in the estate in proportion to his inheritance share (TCC.682).
As an exception, heirs are not responsible for the personal performance debts of the testator. For example, the actions of the shoemaker and the painter are personal acts, such as an order given to a master who makes special handmade shoes and an agreement with a certain painter to have a portrait of someone painted. The identity and personality of the shoemaker and the painter were taken into consideration when creating the debt relationship. The act that is the subject of the debt must be fulfilled by them with their personal effort, ideas or talents. The heirs cannot be expected to manufacture shoes or paint. As a matter of fact, the Supreme Court expressed this issue as follows in one of its decisions:
“…in accordance with Article 599 of the Turkish Civil Code; “The heirs acquire the inheritance as a whole upon the death of the testator, in accordance with the law… They become personally responsible for the debts of the testator.” As a rule, in accordance with universal succession, which refers to the transfer of the property as a whole to the heirs upon the death of a person, it is made by taking into account the personal characteristics of the testator, his mental and physical characteristics and abilities, and the debt must be fulfilled by the testator himself, except for personal performance debts. Material performance debts that are due to be fulfilled from the assets are transferred to the heirs.” (Supreme Court of Appeals General Assembly, Case No. 2008/21-235, Decision No. 2008/248, Date. 12.3.2008).
The heirs are responsible for all material performance debts, damages caused by tort, and even tax debts, except for the personal performance debts of the testator.
“Debts related to the responsibility for compensation due to the unfair act of the testator are also within the liabilities of the estate; included in the estate. The court decided to reject the case on the grounds that the debt of 87,877.21 TL in the file numbered 2008/178 E. of the Trabzon Labor Court was not included in the liability of the deceased’s estate at the time of death, and therefore the judgment was deemed incorrect and therefore had to be overturned.” (Case No. 2022/3969, Decision No. 2022/8021, Date. 26.12.2022).
If the assets of the testator are not sufficient to pay his/her debts, and technically the liabilities of the estate are more than its assets, this situation will undoubtedly put the heir, who will be personally responsible for the debts of the testator, in a difficult situation. For example, in a case that has been referred to the judiciary, it is quite normal that the heirs of this person do not want to accept the inheritance, based on the fact that the testator appears to be the founding partner of 22 companies, even though she/he is engaged in shoe repair business, has tax debts due to these companies, and does not have the assets to cover his/her debts. Here, rejection of inheritance is the statement of will of the heir (legal or appointed) not to accept the inheritance that has been transferred to him/her.
II. WHICH HEIRS CAN DICLAIM THE INHERITANCE?
According to Article 605/1 of TCC: “Legal and appointed heirs may reject the inheritance.”
Who are the Legal Heirs?
Legal heirs are the persons specified in the law who have acquired the title of heir in accordance with the law.
A. Blood Relatives
1. Descendant. Children are equal heirs (TCC. 495/2). If the child died before the parent who left the inheritance, his grandchildren take his place, continuing in the form of his grandchildren, if he also passes away. If the child who died before the deceased has no descendants (grandchildren, great-grandchildren, etc.), his inheritance passes to other siblings, if any. This group is called first class heirs in inheritance law.
2. Mother and father. The heirs of the deceased who have no descendants are his parents. They are equal heirs. The place of the parents who died before the testator is taken by their descendants (siblings, nephews, grandchildren, etc.) through succession at all levels (TCC. 496). This group is called second class heirs in inheritance law.
3. Grandmother and grandfather. The heirs of the deceased who has no descendants, parents, or descendants are his or her grandparents. They are equal heirs. Grandparents who died before the testator are replaced by their descendants (uncle, uncle, aunt, aunt and their children, etc.) through succession at all levels (TCC. 497). This group is called third class heirs in inheritance law.
4. Children out of wedlock. Since the lineage between the child and the mother is established at birth (TCC. 282/1), there is no problem in terms of the child’s inheritance from the mother. The lineage between the child and the father is established by marriage with the mother, by recognition or by a judge’s decision (TCC. 282/2). Those who were born outside of marriage and whose lineage was established by recognition or a judge’s decision, become heirs like relatives in marriage from the father’s side (TCC. 498).
B. Surviving spouse (TCC. 499)
The surviving spouse inherits the testator in the following proportions, depending on the group he/she is with: 1. If the testator inherits together with his descendants, one fourth of the inheritance, 2. If the testator inherits together with his parents, half of the inheritance, 3. If the decedent’s grandparents and their children inherit together, three quarters of the inheritance goes to the spouse, otherwise the entire inheritance goes to the spouse.
C. Adoption (TCC. 500)
Adopted children and their descendants inherited from the adopter as if they were blood relatives. The adopted child’s inheritance in his/her own family also continues (double inheritance). The adopter and his relatives do not inherit the adoption (one-way). “…since the adopted son and his descendants will inherit from the adopter like blood relatives, the fact that the adopted child has died before does not prevent his descendants from being the heirs of the adopter” (Supreme Court 1st Law Department, Case No. 2004/716, Decision No. 2004/1392, Date. 19/02/2004).
D. Government (TCC .501)
The inheritance of a person who dies without leaving an heir passes to the Government.
Who are the Appointed Heirs?
Appointed heirs, on the other hand, acquire their title of inheritance through a will (TCC.531 an so on) or inheritance contract (TCC .545 and so on) made during the inheritance’s lifetime, the terms of which are specified in the law, to give effect and result after the death of the inheritor.
III. WHERE AND HOW IS THE DISCLAIMER OF INHERITANCE MADE?
The heir who wishes to reject the inheritance can reject the inheritance by making a verbal or written statement of will to the magistrate at the last place of residence of the testator. (TCC. art. 605, 606, 609) This declaration of will is a legal transaction that creates disruptive innovation. The title of acquired inheritance is abolished with retroactive effect (Supreme Court 2nd Law Department, Case No. 2004/15954, Decision No. 2005/2593, Date: 22.2.2005).
In an incident that is the subject of an appeal, the plaintiff heirs briefly stated in their petition: In Article 382/c-7 of Civil Code No. 6100, it is stated that the request for determination and registration of the declaration of rejection of the inheritance is a non-contentious judicial matter, and in Article 383, it is stated that the court in charge of non-contentious judicial matters is the Civil Court of Peace, unless there is a regulation to the contrary, and in accordance with Article 384, it is stated in the law. Unless there is a provision to the contrary, they requested that the Istanbul Courts be deemed competent and that the local court decision be re-examined, stating that for uncontested judicial matters, the court where the requester or one of the relevant parties resides is competent. Istanbul Regional Court of Justice 7. Law Department decided as follows:
“According to Article 576/1 of TCC, “Inheritance is opened at the place of residence of the testator for the entire assets.” The authority here is absolute authority, and the Civil Court of Peace in the last place of residence of the testator is the competent court. According to this legal regulation, the request for rejection of the inheritance can be made verbally or in writing by the heir in the Civil Court of Peace of the place where the inheritance was opened. In the concrete case, according to the population registration and death certificate of Abdulkadir Bekdemir, who left an inheritance, it is understood that his last place of residence was Artuklu/Mardin. For this reason, the plaintiff’s appeal application had to be rejected on merits” (T.R. Istanbul Regional Court of Justice 7th Law Department, Case No. 2016/10, Decision No. 2016/10, Date. 15.11.2016).
The disclaimer must be unconditional. The judge of peace records the verbal or written rejection statement in a report. The declaration of rejection made within the prescribed period is recorded in the special registry of the court of peace of the place where the inheritance is opened, and if the rejecting heir’s wishes, a document showing the rejection is given to him (TCC .609/2, 3, 4).
IV. IS IT REQUIRED FOR THE ATTORNEY (REPRESENTATIVE) WHO MADE THE DECLARATION OF DISCLAIMER ON BEHALF OF THE HEIR TO HAVE SPECIAL AUTHORIZATION?
In accordance with the provision of Article 39/2 of the Regulation on the Implementation of the Custody, Guardianship and Inheritance Provisions of the Turkish Civil Code, the attorney (representative) who makes a declaration of disclaimer on behalf of the heir must have special authority to make this disposition.
“Although there is no special authority in the plaintiffs’ attorney’s power of attorney regarding the rejection of the inheritance, it is not deemed appropriate to continue the trial without completing this deficiency.” (Supreme Court 14th Law Department, Case No. 2016/16104, Decision No. 2020/6246, Date. 15.10.2020).
“On the other hand, since there is no special authority to reject the inheritance in the power of attorney given by the plaintiffs (principal and combined), the plaintiffs’ attorney should be given time to submit a power of attorney containing the special authority, and this deficiency should be completed, and the verdict should be made according to the result.” (Supreme Court 14th Law Department, Case No. 2017/1446. Decision No. 2021/604 Date: 3.2.2021).
V. WITHIN WHAT PERIOD SHOULD DISCLAIMER OF INHERITANCE BE MADE?
Inheritance can be disclaimed within three months. This period is a degrading period. The judge is taken into consideration ex officio. So, when does this period start to run? For legal heirs, unless it is proven that they later learned that they were heirs, they learned about the death of the deceased; For heirs appointed by will, it starts to operate from the date on which the testator’s disposition is officially notified to them (TCC. 606). The heir who does not reject the inheritance within the legal period wins the inheritance unconditionally (TCC. 610/1). In case of serious reasons, the judge of peace may extend the period of refusal granted to legal and appointed heirs or grant a new period (TCC. 615).
VI. DOES THE RIGHT OF DISCLAIMER OF AN HEIR WHO DIES WITHOUT DISCLAIMER THE INHERITANCE TRANSFERS TO HIS/HER OWN HEIRS?
The right of rejection of the heir who dies without disclaim the inheritance passes to his heirs. The disclaimer period for these heirs starts from the date they learn that the inheritance has been transferred to the testator. However, this period does not end unless the period given to the heir for the rejection of the inheritance passed on by his testator expires. If, as a result of rejection, the inheritance passes to those who were not heirs before; For these, the rejection period starts from the date they learn that the inheritance has been rejected by the previous heirs (TCC. 608).
“Tevfik and Bülent, among the plaintiffs, are the descendants of Yurdanur, who rejected the inheritance, and Onur Murat and Eda are the descendants of Aynur, who rejected the inheritance. If, as a result of the rejection, the inheritance passes to those who did not have previous heirs, the rejection period for them starts from the date they learned that the inheritance was rejected by the previous heirs (TCC.Art.608/3). In that case, evidence regarding the date of learning must be collected and, based on its results, it must be determined whether the rejection is in due time or not. It was not deemed appropriate to make a written decision with incomplete examination without taking this issue into consideration” (Supreme Court 2nd Law Department, Case No. 2011/23214, Decision No. 2012/8265, Date: 3.4.2012).
VII. IN WHICH CASES CANNOT THE RIGHT TO DISCLAIM INHERITANCE BE USED?
1. The heir who does not reject the inheritance within the legal period of three months wins the inheritance unconditionally (TCC. 610/1).
2. The heir who is involved in the estate transactions as an heir before the rejection period expires, who does things that are not in the nature of the ordinary management of the estate, or that is other than what is necessary for the performance of the decedent’s affairs, cannot reject the inheritance (TCC. 610/2).
“From the information and documents in the file, it can be seen that the plaintiffs have a right to operate the business titled …., which was transferred to them with the death of the deceased, with the disclaimer of the Samsun Notary Public Office, dated 01.08.2012, numbered 17293. With the disclaimer, it is understood that they transferred all the inheritance rights and shares in the truck with plate number …., which was transferred to them upon the death of the deceased, to the heir …. “It was not deemed appropriate to make a decision without considering that the plaintiffs were involved in inheritance transactions with these transfers and that they could not reject the inheritance in accordance with the 2nd paragraph of Article 610 of the TCC, and for this reason, it was decided to overturn the decision.” (Supreme Court 7th Law Department, Case No. 2022/1242, Decision No. 2023/2299, Date. 26.4.2023)
Here, the answer to the questions of which works carried out by the heir are of ordinary management nature and are necessary for the execution of inheritance affairs and are not considered as interference in estate transactions are answered as follows in a decision of the Supreme Court:
“…On the other hand, in the decision of the General Assembly of Law dated 08.02.1950 and numbered 140/20; “In order to determine whether a transaction is an ordinary administrative transaction, it is necessary to take into account the purpose of the heir who performs the transaction. If the purpose of this is not to dispose of the estate as an heir and is not an isolated transaction, In order to prevent the damage that may occur due to negligence when accepting the inheritance, it is necessary to accept the treatment he took as ordinary administrative treatment: In short, taking precautions to prevent the theft of goods, filing a lawsuit immediately to cut the statute of limitations, paying taxes to prevent the customers of a hotel or casino from being dispersed, taking precautions to prevent theft of goods, In order to prevent the action of the heir from being considered as interference in the estate affairs, it is necessary to determine the purpose for which he acts in this action, and if the purpose of the heir is not to save the estate as an heir, his actions can be considered as interference in the estate affairs. It has been adopted that it will not be qualified, and the right of refusal will not be waived.
In addition, according to the theory of trust put forward in the doctrine; In order to determine what a statement of will or a voluntary behavior means, it is necessary to properly evaluate all the situations and conditions known to the other party who is addressed to the statement or the said behavior, in accordance with the rule of honesty, not the internal will of the person who made the statement or the behavior in question.
In addition, the amount of debt claimed to be paid by the plaintiff heirs is a small amount compared to the liabilities of the estate, and since the heirs have paid from their own assets, the payment process is a normal transaction, and it is not right to see these issues as a reason for rejection of the case without considering that the payment of the small part of the debts by the plaintiffs cannot be considered as acceptance of the estate. Even if the payment is not a small amount, it is not correct to make a written decision assuming that the estate has been adopted by all plaintiffs without determining the heirs who made the payment. It was necessary to overturn the decision for the aforementioned reasons” (Supreme Court 7th Law Department, Case No. 2022/1460, Decision No. 2023/2505, Date: 11.5.2023).
The Supreme Court ruled that the fact that the heir fulfilled his legal obligations and filed an inheritance and transfer tax return after the death of the testator cannot be interpreted as accepting the inheritance, considering that failure to submit it within the legal period would create liability. (Supreme Court 14th Law Department, Case No. 2016/16104, Decision No. 2020/6246, Date: 15.10.2020).
It is stated in the law that filing a lawsuit and pursuing coercive enforcement proceedings to prevent the expiration of statute of limitations or deduction periods will not eliminate the right of refusal. (TCC. 610/3).
3. The heir who hides the estate assets or appropriates them for himself cannot reject the inheritance (TCC. 610/2).
“The deceased passed away on 27.02.2005, and the plaintiffs transferred the immovable property numbered 9 parcels belonging to the deceased’s spouse to their names in the title deed on 3.3.2005, and on the same day, they transferred their shares to Hürü, one of the heirs. This process is the ownership and appropriation of the estate. The plaintiffs’ right to dismiss has been waived. It is against the procedure and the law to make a decision in writing while the case should be rejected.” (Supreme Court 2nd Law Department., Case No. 2007/11460, Decision No: 2007/12835 Date. 28.9.2007).
VIII. WHAT HAPPENS IF THE ENTIRE DESCENT DISCLAIM THE INHERITANCE?
Descendant: They are the heirs that go downwards in the form of children, grandchildren and great-grandchildren of the testator and fall into the first group mentioned above. To give an example; The father passed away, leaving behind his wife and three children. If all of the children reject the inheritance, their share passes to the surviving spouse. (TCC. 613).
IX. WHAT DOES JUDICIAL REJECTION OF INHERITANCE MEAN?
If the testator’s inability to pay is clearly evident or officially determined on the date of death, the inheritance is deemed to have been rejected (TCC. 605/2). The law has placed a presumption that such an inheritance cannot be accepted. The denial of the inheritance is not subject to a period of time, and the heirs can always request that the estate is insolvent by filing a declaratory lawsuit against the creditors, and it can always be claimed that the estate is insolvent as a defense in the lawsuit to be filed against the heirs (Supreme Court 10th Law Department, Case No. 2020/10424, Decision No. 2021/2594, Date. 3.3.2021). The competent court in this case is the court of residence of the creditors at the time the case was filed.
“Heirs can always request the determination of the insolvency of the deceased, unless there is a violation written in Article 610 of the Turkish Civil Code, that is, unless they have tacitly accepted the inheritance. The period specified in Article 606 of the Turkish Civil Code does not apply in this case. The case is tried by directing hostility towards the creditors. The competent court in this case is the court of residence of the creditors at the time the case was filed. In addition, Article 39/2 of the Regulation on the Implementation of the Custody, Guardianship, and Inheritance Provisions of the Turkish Civil Code. In accordance with the paragraph, it is also mandatory to submit a special power of attorney containing the authority to reject the inheritance” (Supreme Court 7th Law Department, Case No. 2023/1101, Decision No. 2023/2012, Date. 6.4.2023).
The plaintiff’s heirs are responsible for the litigation costs and fees.
“… Since the cases of denial of inheritance by default are cases in which the defendant-creditor does not know and is not able to know that the deceased’s estate is in debt, and it is decided after the trial whether the estate is in debt, the plaintiff party, not the defendant party, is responsible for the trial expenses and fees.” (Supreme Court 7. LD., Case No. 2017/1446 Decision No. 2021/604 Date. 3.2.2021).
The court investigates whether the estate is in debt and determines its value and amount on the date of death.
“In cases filed regarding the denial of inheritance, it is necessary to investigate whether the estate is clearly in debt. If a certificate of insolvency is issued at the end of the enforcement proceedings, the estate is considered to be in debt. Otherwise, it is duly checked by banks, traffic registration directorate, tax offices, municipalities and land registry offices, etc., to determine whether the estate is insolvent or whether the deceased has assets. “The deceased’s receivables and debts should be investigated by the police, and his assets and liabilities should be determined as of the date of death, taking into account his active assets and the amount of debt subject to follow-up, in a way that will not cause any hesitation” (Supreme Court 7th LD., Case No. 2022/289, Decision No. 2023/1422, Date. 9.3.2023, Supreme Court of Appeals 7th LD., Case No. 2022/1046, Decision No. 2023/2399, Date. 8.5.2023).
What happens if it turns out that the debt is not the personal tax debt of the testator, but the tax debt of the limited company of which he is a partner and representative?
As it is known, according to the provision of Article 35/1 of the Law No. 6183 on the Collection Procedure of Public Receivables; Limited company partners are directly responsible for the public receivables that cannot be collected from the company in whole or in part or are understood to be uncollectible, in proportion to their capital shares, and are subject to follow-up in accordance with this Law. According to the Supreme Court, if it is not possible to collect the public receivable completely from the company’s assets, the request must be accepted if the assets of the testator’s estate determined as of the date of death are not sufficient to cover the debt.
“…the one who leaves an inheritance; He is directly responsible for the tax debt of the limited company of which he is a “partner” and “representative”, which cannot be collected from the company’s assets or is understood to be uncollectible, “in proportion to the capital share he has contributed” as a partner of the company; He also has personal responsibility as his “representative”. The fact that the public creditor has not yet initiated proceedings against the plaintiffs, who are the legal heirs of the testator, does not mean that the legal heirs are not under debt threat. So, with the help of an expert or experts who understand this matter; Determining the assets and liabilities of the company by conducting an examination of the books, records and documents of the limited company of which the testator is the “partner” and “legal representative”, and thus determining the amount for which the testator will be personally liable in proportion to the capital share due to the public debt of the company; If it is possible to collect the public receivable completely from the company’s assets; In this case, the request is rejected, considering that the plaintiffs will not have any legal benefit in requesting a determination of insolvency; If not, if the assets of the testator’s estate determined as of the date of death are not sufficient to cover the debt, the request must be decided to be accepted (Supreme Court 7th LD., Case No. 2022/6243, Decision No. 2022/8048, Date. 26.12.2022, also see: Supreme Court 7th LD., Case No. 2021/2622, Decision No. 2022/1184, Date. 21.2.2022).
X. Does a person disclaim his father’s legacy prevent his father’s right to be an heir to his father or mother?
It does not prevent. The person has rejected his father’s inheritance. If he wants to reject the inheritance from his grandfather or grandmother, he will do so with a separate rejection statement.
“A son who rejects his father’s inheritance becomes the heir of his grandmother who died after his father; the fact that he rejects his father’s inheritance does not constitute an obstacle for him to inherit from his grandmother” (Supreme Court 2.LD. Decision No: 7527/989 Date. 6.2.1951).