Disclaiming an Inheritance in Turkey – Attorney Ozan Soylu

HOW TO DISCLAIM AN INHERITANCE IN TURKEY 

Disclaiming an Inheritance; The decedent is the real person who leaves an inheritance after his death. As a rule, the legal representatives of the testator and their appointed heirs, if any, are responsible for the debts of the testator. The responsibility of the heirs arises with the final acquisition of the inheritance. For this, the acceptance or rejection of the inheritance must pass.

With the death of a person, important consequences arise, especially in terms of inheritance law. In case of death, the rights and debts of the deceased automatically pass to his heirs. This is called estate. As a rule, the inheritance passes to the heirs at the time of death. This is the legal requirement of the principle of universal succession. The inheritance passes to the heirs at the time of death and the heirs are not required to accept the inheritance. Inheritance includes both rights and obligations. Although the inheritance is seen by the people as leaving some goods and properties by the deceased, the debts of the deceased pass to his heirs as his legacy. The legislator wanted to limit this provision in order to prevent heirs from being victims in such cases. Accordingly, the institution of “disclaiming an inheritance” has been regulated and has given the right of the heirs to be responsible for the debts of the inheritor only with the inherited estate.

Inheritance can be denied in two different ways.

The heir’s overt refusal of the inheritance (true denial of inheritance)
Considering the inheritance to be rejected as per the law (deficit rejection of the inheritance)

TRUE REJECTION OF HERITAGE

The legislator has stipulated that the inheritance can be disclaimed by the legal and appointed heirs within 3 months. The 3-month period starts with learning of the death of the inheritor or when the appointed heirs are notified of the situation. This period is disqualifying and failure to comply with the period will make it impossible to reject the inheritance.

Inheritance can be denied by applying to the civil court of peace.

HOW TO MAKE A DISCLAIMING AN INHERITANCE IN TURKEY 

The heirs can apply to the magistrates’ court with an oral or written statement. The magistrate records the refusal statement in a minute. An unconditional and unconditional rejection statement is written in the special register by the magistrates’ court of the place where the inheritance is opened, and a document is given to the heirs that the inheritance is rejected.

In case of death, the inheritance of the legator passes directly to the legal and appointed heirs. As a rule, the remaining and debts of the inheritor pass to the heirs by law. It suffers from being made responsible for the inheritance of those who do not encounter the production that occurs in the inheritance of rights. It is his own responsibility with his own personal assets to pay these debts. Legislator benefited from this massive library collection. In this context, the “rejection of inheritance”, which is not based on the belief about the heirs, is placed on legal ground. According to the articles of the Turkish Civil Code, “Legals and assignees 605. If the death is certain or registered, such as the insolvency of the inheritor, the inheritance is deemed to have been rejected.”

WHEN IS A DISCLAIMING AN INHERITANCE MADE?

As a rule, the disclaiming an inheritance can be made after the death of the legator. When the inheritor is alive, the refusal is not inherited. However, a person who does not want to gain the title of heir must make a contract of waiver of the inheritance in the health of the inheritor.

IN WHICH REASONS CAN INHARITANCE BE REJECTED?

In practice, although it is observed that the inheritance is rejected in order to get rid of the debts of the inheritor, there is no legal obstacle to making a rejected inheritance for other reasons. Inheritance may also be rejected for moral reasons, increasing the shares of other heirs or for special reasons.

HOW TO USE THE RIGHT OF DISCLAIMING AN INHERITANCE?

There are a number of points to be considered when inheriting a refusal.

The heir must have legal capacity.
Persons with the power of discernment, who have completed the age of 18, and who are not restricted, can inherit the refusal alone. Persons who do not have the power to distinguish, on the other hand, are considered incompetent and do not have the right to inherit the rejection on their own. However, instead of them, the legal representatives of the fully incapacitated person may refuse the inheritance to represent him. If the heir is under the age of 18 or is limited, although he has limited incapacity, that is, he has the power to distinguish, the legal consequences of the refusal to be made are subject to the approval of the legal representatives of the heir.

The declaration of refusal of inheritance must be made verbally or in writing to the magistrate’s court.
The court of peace of the place where the inheritance is opened is the competent court. As a rule, the rejection statement is not dependent on any form. Rejection can be made either verbally or in writing.

The rejection statement must be made unconditionally and unconditionally.
The statement of refusal must be made expressly without any hesitation. A statement of refusal cannot be made based on either a delaying or disruptive condition. In such cases, the invalidity will be sanctioned. For example, statements such as “I reject the inheritance on the condition that my other sister rejects it” constitute an obstacle to the inheritance.

LIMITATION TIME FOR THE USE OF THE RIGHT OF REFUSE

The usual period for the disclaim of inheritance is 3 months. This period is derogatory.

EXTENDING THE REJECTION PERIOD

In some cases, the statutory refusal period may be insufficient. For example, in cases where it is not possible for the heir to inherit the refusal within the legal period due to reasons such as illness or being in a foreign country, the extension of the refusal period or the granting of a new refusal period will come to the fore. This is at the discretion of the judge. The judge may not use this right spontaneously and give an heir an additional time. The heir must have a request in this regard. If the judge evaluates the important reasons put forward by the heir and finds it in accordance with equity, he will either appoint a new period or extend the remaining period. This period is not limited to 3 months. If necessary, the extended period may be extended again.

WITHDRAWAL OR CANCELLATION OF DISCLAIMER OF HERITAGE STATEMENT

Withdrawal and cancellation of rejection declaration are different from each other. Withdrawal is the subsequent waiver of a refusal. Annulment of the rejection statement is the situation where the rejection statement becomes invalid due to various reasons.

WITHDRAWAL OF DISCLAIMER
As a rule, the denial of inheritance is irrevocable. However, in some cases, withdrawal is allowed. In this context, all relevant parties, including the creditors of the estate, must approve the take-back. Another possibility that allows this is if the declaration of refusal reaches the court of peace before the declaration of refusal. If the declaration of refusal of the inheritance declaration is received at the same time as the declaration of refusal or after the declaration of refusal and it is learned that the refusal is withdrawn before the declaration of refusal is learned, the declaration of refusal will be withdrawn.

CANCELLATION OF DISCLAIME DECLARATION
The rejection statement can be canceled like any other statement of will due to error, cheating, intimidation and mistake. The important thing is to prove that if the heir knew the truth, he would not reject the inheritance. For example, if the heir has been deceived in this regard and has made an inheritance in order not to be in debt, even though there is no debt in the estate, he can benefit from this institution.

HOW TO CANCEL THE DISCLAIM OF INHERITANCE STATEMENT?

You can request the cancellation of the rejection statement from the magistrate’s court. When your rejection request is accepted, it will be canceled retroactively from the moment the rejection statement is made.

JURISDICTIONAL DISCLAIMER AND CONDITIONS

In some cases, the inheritance is deemed to have been forfeited despite the absence of an inheritance declaration. This situation arises in some cases. These situations are;

The insolvency of the inheritor must be clearly evident.
This should have been officially established. If there is a certificate of insolvency due to the proceedings against the inheritor, if there is a bankruptcy decision, this issue comes to the agenda.

The heirs must exercise their right to forfeit the inheritance.
If the conditions are fulfilled, there is no need to apply to the magistrate’s court, as the inheritance will be deemed to have been rejected by default. The heirs can apply to a lawsuit to determine this situation.

LEGAL CONSEQUENCES OF DISCLAIMING AN INHERITANCE

Persons who use the right of refusal to inherit lose the title of “heir”. The inheritance share of the person who inherits the refusal passes to other heirs. If the inheritor has only one heir, and if the refusal is inherited by this person, or if all the inheritances have inherited the refusal, then the inheritance is liquidated by the bankruptcy provisions as there will be no other heirs left. We will evaluate various possibilities in terms of the legal consequences of the refusal of inheritance.

Rejection of all of the nearest heirs;
In this case, liquidation takes place by the magistrate court in accordance with the bankruptcy provisions. At the end of the liquidation, the residual values ​​are given to the heirs despite the rejection of the inheritance. It is a situation that is frequently encountered in cases where the inheritance of the heir is deep in debt. Persons who inherit the refusal, however, have the right to reject the residual values ​​given to them.

Inheriting the rejection of the entire descendant;
In this possibility, the shares of the people who inherit the refusal pass to the right spouse of the inheritor. If the spouse is not alive, this provision does not apply. Likewise, the right of the right spouse to reject this inheritance is reserved.

Rejection of inheritance for the benefit of lower-degree heirs coming later;
In this case, the closest legal heirs of the inheritor must inherit the rejection. However, at least one of these people who inherit the refusal must make this refusal inheritance declaration for the benefit of the heirs who come later. The declaration of refusal of inheritance should be made for the benefit of all, not just certain individuals. In this case, the magistrate’s court will notify these people who come later and will ask them to decide whether to accept the inheritance or not within 1 month. If there is no response, the inheritance will be deemed to have been refused.

The refusal of the appointed heirs to inherit;
In this case, the share of the appointed heir will pass to the nearest legal heirs. In some cases, the inheritor can make a death-related disposition on who will pass on this inheritance if the heirs he has appointed reject the inheritance. With the interpretation made, if it is concluded that the legator does not want his inheritance to pass to his immediate heirs, it can be ensured that the rejected inheritance share is transferred to the state.

FREQUENTLY ASKED QUESTIONS ABOUT THE DISCLAIMING AN INHERITANCE

1- Who can make the inheritance of the heirs who died without rejecting the inheritance?

– The right of refusal of the heirs who died without rejecting the inheritance passed to their heirs as a rule. The inheritance is rejected within 3 months from the date they learn that the inheritance has passed to the inheritor.

2- Can refuse of inheritance made through delegate?

– The right of refusal is not a strictly personal right. The refusal by the authorized representative can be inherited. There are discussions in the doctrine that this authority is a special authority. Therefore, your representative must have a special authorization granted by you.

3- Is it obligatory to give reasons in the rejection statement?

– No, you do not have to provide any justification for your refusal. The important thing is to understand that the inheritance is clearly denied from the content of the declaration.

 

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