06.01.2023

Writers: Sema Çelebi, Beyza Büyükağaçcı

Upon the opening of the inheritance, the rights which are in the inheritance will automatically pass to the heirs by operation of law, and the heirs may also claim these rights. However, legislator not only left the process until the moment of sharing the inheritance, but also ensured some protective measures. It is aimed to protect the real rights holders on the inheritance until the determination of the real beneficiaries and the distribution of the assets, through the articles 589 and following of the Turkish Civil Code and the following. The regulations regarding protective measures are not limited only to the Turkish Civil Code, but are also included in the “Medeni Kanun’un Velayet, Vesayet ve Miras hükümlerinin Uygulanmasına Dair Tüzük”. One of these regulation about protective measures is the “Lawsuit for Determination of Inheritance”.

The lawsuit for determination of inheritance is a protective measure that aims to determine the assets that make up the inheritance as of the date of death, being a basis for future disputes related to the inheritance, and obtain the opportunity to learn about the status of the assets in the inheritance at the time of death. The lawsuit for determination of inheritance is not only about determination, but also aims to ensure of legal measures that need to be taken.

Determination of Inheritance

In the lawsuit for determination of inheritance, which can be requested by each of the heirs, the values ​​of the assets belonging to the deceased are determined. When determining the inheritance, all the assets in the inheritance are taken into account and the net inheritance is calculated by subtracting the liabilities from the assets. If there is a person who has been or needs to be placed under guardianship among the heirs, or if one of the heirs has been missing for a long time and has not got representative, one of the heirs or right holders parties can request the keeping of the register of the inheritance within one month from the date of death, and the judge will decide accordingly. However, this process does not constitute conclusive evidence that the assets already determined are part of the inheritance and the undetermined yet ones are not. Besides, heirs' approval of the determined assets does not redeem them of the undetermined liabilities, and also does not mean that they cannot make a claim for undetermined assets. Despite the determination of the inheritance, the heirs can dispute the determined or undetermined assets against each other or third parties. The register kept as a "protective measure" does not serve as a basis for the future distribution of the inheritance or any other private law relationship. However, it is not necessary to record the value of the assets in the register, as the aim is not to determine the value of the inheritance, the main purpose is determine the rights in inheritance itself.

Afterwards, the judge in charge of the deceased's place of residence, takes all necessary measures, upon request or ex officio, to protect the inheritance assets and ensure that they pass to the rightful holders. Since the determination lawsuit is a type of declaratory lawsuit, the court's task is to determine the assets reported to belong to the inheritance, record them in the register, the court's task is to determine the assets reported to belong to the inheritance, record them in the register, sell those that cannot be preserved if any, convert them into cash, and deposit them in the bank as inheritance property if there is money or foreign exchange for chattels, depositing them in the bank as inheritance assets, keep the gold and other jewelry to the estate court's safe and register them and give other items to the relevant person or a third party as a custodian and show the determined items in the decision. Upon the elimination of the circumstances requiring taking such measures, the judge terminates the taken measures and delivers the inheritance to the heirs. In the case of a heir who refuses the inheritance, a court decision cannot be made for the delivery of the inheritance to the that heir. However, elements that would cause the ongoing claim dispute among the heirs or result in the division of the inheritance cannot be delivered to some of the heirs without the consent of all the heirs.

The Parties to the Lawsuit and the Court of Competent Jurisdiction

Each of the heirs can file a determination lawsuit, which is regulated in articles 589 and following of the Turkish Civil Code. In the ex parte proceeding legal action of the lawsuit, the competent court is the Civil Courts of Peace located at the last residence of the deceased. However, if there is a foreign element in the specific case, the lawsuit shall be heard by the last residence court of the deceased in Turkey. If the last residence is outside of Turkey, the lawsuit shall be heard by the place where the assets belonging to the inheritance are located.

Statute of Limitations and Prescription Periods

This process is not subject to a deadline as a rule. It can be requested as long as the prevention measure is not impossible or ineffective, or until the inheritance is not distributed. Because the process of determining the estate as a protective measure does not have any impact on rights and obligations in terms of substantive law.

RESULT:

The lawsuit for determination of inheritance, which is a protective measure, aims to determine the assets comprising the inheritance as of the date of the deceased's death.

The inheritance determination lawsuit is a declaratory lawsuit and not an action of recovery. However, it is possible to obtain certain legal measures through an inheritance determination lawsuit.

The protective measures related to the protection of the estate can be requested at any time until the partition of the estate, because of these measures does not have any impact in terms of substantive law.

In the ex parte proceeding legal action of the lawsuit, the competent court is the Civil Court of Peace located at the last residence of the deceased.

You can take a look at the following decisions of The Court of Cassation regarding the subject;

2nd Civil Chamber with no. 2007/2494 & 2008/2685 on 03.03.2008

14th Civil Chamber with no. 2016/527 & 2018/5514 on 11.9.2018

8th Civil Chamber with no. 2014/850 & 2015/20512 on 07.11.2014

8th Civil Chamber with no. 2013/13009 & 2014/17643 on 1.10.2014

14th Civil Chamber with no. 2016/6394 & 2019/5096 on 11.6.2019

14th Civil Chamber with no. 2015/18247 & 2017/2270 on 23.3.2017

14th Civil Chamber with no. 2018/61& 2021/1966 on 22.03.2021